Asymmetrical Information

Because the "Court" made abortion written in stone, it has become a big issue.

In the early seventies NY made abortion leagal, this caused an influx of young pregnant girls to flock to NY.

My friend Stanley ( a borderline disreputable kinda guy) got a job driving a van for an abortion mill (they arranged the bus trips). His job was to go to the Port Authrity Bus station and pick up the girls and take them to the "clinic". His scam at the time was after the first girl got off the bus, he would flourish a few dollars in his hand and say "Thank you miss!" thus giving the impression that he got a tip, most of the others would follow suit.

The abortion industry (legal at the time in NY) attracted creeps then and is infused with them now.

Roe needs to Go.

The states are were these issues need to be decided, and those decisions should never be locked in stone.

"If pro-lifers can get an anti-Roe court, at the expense of a couple of years of electoral setbacks, I bet they take that deal in a New York minute."

Yup. Hard though it might be for Saletan and his buddies to believe, but we'd rather be right than President (as some guy once said, heh).

The flip side of the Saletan position is, why don't liberals just abandon their rigid, unbending, unthinking support for abortion on demand at any time and without apology? At a stroke, they'd take a major "wedge issue" off the table, restore some sense to the debate about court appointments (which right now is grossly distorted by abortion), and piss off...hmm...the tiny coterie of aging ultra-feminists for whom abortion is the defining issue of a generation.

Then again, I suppose this would require thought.

The Daddy writes:

The states are were these issues need to be decided, and those decisions should never be locked in stone.

One of the biggest myths out there is that if Roe were to be overturned, the issue would automatically get kicked back to the states and that would end federal involvement. There's no good reason to believe this, however. There's nothing to stop Congress from passing and the president from signing legislation restricting or even outlawing abortion if Roe were overturned.

"Er . . . two thirds of the country supports legal first term abortions. "

Perhaps you meant first *trimester*?

You could be waiting a while for that. Only three appointment shorts of overturning Roe? Hey, no big deal. We're only five votes short of having the Supreme Court declare that the Due Process clause requires us to believe the Earth is a cube.

Anyway, while about 65% of Americans oppose reversing Roe, this is mostly because they have no idea what it says or what it does. They don't even know that it's mostly not in effect today. 60% believe abortion should be illegal or legal only in a few circumstances, which I can reasonably assume means rape, incest, or for the physical safety of the mother. This just shows the thickness of the cloud of bullshit the pro-abortion groups and Democrat politicians have been able to expel over the past 30 years.

There's nothing to stop Congress from passing and the president from signing legislation restricting or even outlawing abortion if Roe were overturned.

Yes, there is. Did you really think you'd found something the rest of us haven't?

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

It's quite possible the West Coast Hotels Co. v. Parrish -- U.S. v. Lopez -- U.S. v. Morrison -- Raich v. Gonzales line of cases could ram right into the Roe v. Wade -- Planned Parenthood v. Casey -- [reversal of Roe] line of cases in a ghastly jurisprudential wreck the likes of which has not been seen in decades. However, that would require immense stupidity from all three branches of the federal government. I doubt that will happen.

They don't even know that it's mostly not in effect today. 60% believe abortion should be illegal or legal only in a few circumstances, which I can reasonably assume means rape, incest, or for the physical safety of the mother. Thi

There is no evidence that a even a bare majority let alone 60% of the country believes abortion should be so dramatically restricted. Usually, no more than a quarter of the population says to ban it outright. A roughly similiar segment says keep it legal under all circumstances. This leaves the rest who say it should be legal but with some restrictions, but this is usually not defined in the poll data. Does it mean legal, but no partial birth abortions? Legal, but parental consent required for minors? Legal but not with my tax dollars? Legal but you must wait 24 hours and be given information on alternatives to abortion?

There is plenty of evidence. See the latest Gallup poll: 20% illegal under all circumstances, 40% legal under a few circumstances, 15% legal under most circumstances, 24% legal under all circumstances.

This matches a 2003 ABCNews poll. While 57% there said abortion should be legal in all or most cases, that didn't hold up when specific circumstances were provided.

Situation Should Be Legal Should Be Illegal
All or Most Cases 57% 42
To Save Woman's Life 88 10
To Save Woman's Health 82 14
In Cases of Rape/Incest 81 17
Physically Impaired Baby 54 40
To End Unwanted Pregnancy 42 57
D&X/Partial-Birth Abortions 23 69
Pregnancy is 6 Months+ 11 86

You can see that the 60/40 split from the Gallup poll roughly matches the 57/42 split on whether abortion should be available as birth control found in the ABC News poll.

Yes, there is. Did you really think you'd found something the rest of us haven't?

Most of us have already found the Commerce clause and about 60 years of jurisprudence which gives Congress the ability to regulate almost anything that moves. Legally, one could easily justify a federal ban on abortions on Commerce clause grounds. It does have an impact on interstate commerce and would have more of one if Roe fell and certain states banned abortion, thus making it even more likely that women will cross state lines to get them. If Congress can use the commerce clause to stop Lester Maddox from handing out ax handles, why coudn't it use it to ban abortion, which according to pro life advocates, is part of a federally recognized right to life?

Oh, sure, like I said, five justices can say rain isn't wet and most of the Democrats and half the Republicans will say they must be right. I'll give you the short, practical answer why there won't be massive federal regulation of abortion. First, the Court that reverses Roe v. Wade will not be the court that extends the Commerce power to abortion. That much should be obvious. Second, a majority in Congress could not be found to pass a national ban or legalization of abortion because such an act would have only 20% to 25% support.

The foregoing illustrates nicely the product of a Supreme Court 'finding' a right in the constitution that (1) isn't there and (2) runs counter to the notion that people feel like they ought to have a say in what the law is. Both sides quote polling data in favor of their position which is beside the point if people are denied the vote. It's sort of like looking to polling data on free speech or whether there is equal protection under the law, the difference being the latter are actually in the constitution. No one knows how abortion rights will shake out if left up to a vote, but it doesn't really matter.

The larger principle is fealty to the constitution when it speaks, including its amendatory process, and deference to the people when it does not. What is certain is that neither side has the support to amend the constitution to get what they want. It is almost as certain that Congress could not outlaw abortion if Roe were to be reveresed, because a reversal would almost certainly have to be grounded on the 9th and 10th Amendments, i.e. reserving the right to determine the issue to the states. The same principle that de-federalizes abortion in striking down Roe would have to hold that Congress cannot federalize a right reserved to the states or the people to decide. Reverse Roe, let folks fight it out in the state capitols and get on with the business of national governance.

AT:
The court doesn't have to extend the Commerce power to abortion before the legislation is passed. That would come later in a court to challenge to any federally passed legislation. As for the support level, I think you are seriously underestimating the numbers of anti abortion advocates in congress. Most republicans are anti abortion and there are still a decent number of anti abortion democrats as well. Also, I am not necessarily talking about an outright ban as the only option congress could take. I also raised the possibility of severe federal restrictions, which could be easier to pass than an outright ban.

It is almost as certain that Congress could not outlaw abortion if Roe were to be reveresed, because a reversal would almost certainly have to be grounded on the 9th and 10th Amendments, i.e. reserving the right to determine the issue to the states. The same principle that de-federalizes abortion in striking down Roe would have to hold that Congress cannot federalize a right reserved to the states or the people to decide. Reverse Roe, let folks fight it out in the state capitols and get on with the business of national governance.

This is far from certain. There's no reason why the USCT couldn't strike down Roe without relying on 9th and 10th Amendment grounds. It could simply find that there is no evidence to support a right to privacy, since it isn't listed anywhere in the Constitution and find, in other words, that the court was legislating. It need not invoke Amendments 9 and 10 to do this.

WBG:

The court can't extend Commerce power to legislation before it's passed.

If the issue of a ban or total legalization came up, the court would simply follow Morrison.

I doubt major federal restrictions would come up. Jane is correct that legislators will have no incentive to make national abortion laws when their constituents are getting what they want from the state government. Plus, the court, in reversing Roe, would certainly say in passing that the power to regulate abortion returns to the states, even though that would not be binding.

WBG:

Who said a reversal of Roe would have to be based on the 9th and 10th Amendments? It wasn't me. The court could either discard modern substantive due process, which it won't do, or it can just say abortion isn't a fundamental right and never was. I never argued otherwise.

AT,

No, it wasn't you that argued 9th and 10th amendment grounds. It was McKinney. Sorry if I created the misimpression that it was you.

With respect to the court extending the Commerce clause to abortion, of course it can't do it before the legislation is passed. It does't need to. Congress doesn't have to wait around until a court says "you can do this". It acts and then awaits a court challenge. Whether the statute survives this challenge is another story.

I don't think the SC will want to vote 5-4 to overturn Roe. I suspect that if they do want to overturn they will wait for a 6-3 majority. All they have to do is keep turning down cases until that time.

I think Jane's relative youth is showing here. The simple fact of the matter that the right to control a woman's body was a big hot button issue before Roe V. Wade. You don't care too much about abortion because right now, you have the right to an abortion. Here's a telling quote.

Look at me: pro-choice woman, early thirties, socially liberal. But I just don't care that much about abortion.

Take away the right and I suspect you will feel quite differently about it. Keep in mind that most if not all of the pro life movement believes abortion should be altogether banned as it stops a human life. So federal legislation banning abortion would be the next logical step to take. I doubt given the right's control of the levers of power in Washington, they are going to suddenly reverse course and decide that states rights are fine and let the states decide.

Just a follow up - Just tactical what would you do as a pro lifer. Take up the battle in 50 state legislatures, some you are certainly not going to win such as California. Or do you take up the fight in a single legislature you largely already control? Tactically it's a no brainer.

Personally, I'm convinced that repealing Roe will be the worst thing that could possibly happen to the Republican party. For three decades, they have been able to fire up their base on the issue, while taking no substantive (and unpopular) action because "we don't control the courts".

Post-reversal, this all changes. There will be no reason, in the eyes of pro-lifers, for the Republican legislative majorities not to act. No reason except that a broad national abortion ban would be opposed by 2/3 of the electorate. So if you're a Republican congressperson, do you piss off your base or all the swing voters in your district? Either way, it's a loser.

As others have said on this thread, the most likely outcome of a reversal is that Congress refuses to touch the issue, abortion is legalized in most states, and banned or heavily restricted in a few.

Jane Says: and the fairly small percentage of the population which is regularly having sex with people they don't want to bear children with.

Don't you mean having unprotected sex, etc? I mean, it ain't that hard to not get pregnant.

Point being that I'm regularly having sex with a person I have no wish to ever impregnate (and who has no wish of ever being impregnated), but I still don't have strong feelings on Roe as the pill has been around for 40 years.

Brian, the reason I don't care is that at this point, if I have a baby, I have a baby. Most of my same-age friends feel the same way. Theoretically, we support abortion, but personally, it no longer gets us all that fired up.

Well I don't get that fired up for gun rights (despite living in New Mexico) but if private ownership of weapons was suddenly banned, I would get fired up about it. My point Jane is that you don't get fired up because it is an assumed right. Your behavior changes when the circumstances change.

I personally think that the Republicans would not be that affected by banning abortion except in presidential elections. Why? Because currently Congress is so gerrymandered, that their seats in the House are relatively safe. So they could safely ban abortion as long as they don't mind losing a presidency or two.

Well, if youse guys would come back to reality-land for a minute, you might see that the issue is not abortion, but birth control. For heaven's sakes, learn a little history. Or read some current events. Glugel "Bush administration" and "condoms". Whatever it takes.

As for abortion in some states and not in others, if interstate commerce can rule what we grow in our yard, you better believe it will rule when a woman crosses a state line to (gasp) *murder* her baby!

And, of course, all the great accessories that come with a lifestyle of repression and a tradition of the black market supplying the needs of people with money. Illegal abortion mills, large families in poor households, "pushers" for condoms, gangsters living the high life- won't it be grand!

You may be rich and you may be post-menopausal, but when your maid's fourth son robs your house and your doctor tells you you can't get a cancer medication because in some countries it's used for abortion....well, maybe you get the picture, or maybe you need more time off so you can think about it.

Serial -- You make lots of interesting policy arguments. Do you think those same arguments wouldn't be made in state and federal legislative sessions?

Megan said she was pro-choice, so I am sure that she and others would find your arguments persuasive if the decision were in legislative hands (the hands that are generally supposed to be weighing public policy arguments).

By the way, as unlikely as a broad federal abortion ban is (I'd put the odds well below 10%), I think a broad ban on contraception is way outside the realm of possibility. I don't think we'll be seeing condom pushers on the street in my lifetime.

Right. Well, the most interesting part of my nursing education (I'm a man) was the time spent with Planned Parenthood. I think it helped that I had taken a 'basics of social work' class, taught by the dean of the SW school for non-majors, before spending time with PP.

The history of the organization is fascinating, especially when we consider that prior to 1900 there was basically no regulation of birth control or abortion. IOW, the whole brouhaha about abortion and birth control is a result of forces and trends of the 20th century.

Like it or lump it, local option hasn't been that popular lately. 50 years ago half the counties in the U.S. were dry, or so close to it as made no difference, and now it's very rare to find this when you travel. Maybe something to do with Starbucks and MacDonalds, or maybe the interstates made it easier for people to shop someplace else.

Whatever. But as a keyboard swami I can just about guarantee you that birth control is threatened, and there won't be any local option abortion.

For a mid-century take on this, find Nelson Algren's story about Ding-Dong-Daddyland, an underground manufactury of condoms in Chicago.

I can just about guarantee you that birth control is threatened

Threatened how? I assume you're talking about the religious right's support for abstinence-only sex ed, but there's a big difference between that and outlawing birth control, for Pete's sake. Here in "reality-land," every woman I know—pro-lifers and all—would be right there at the barricades with you the day they outlawed the Pill.

Count me among those that think the GOP would be in serious trouble if Roe was overturned. I know a lot of women inyour demographic sjane and it has been my experience that they don't care that much about abortion because they view it as a right that will not go away. If that changes so will the perceptions of women your age.

You think social conservatives have fought so hard and so long just because they think Roe is a bad legal argument? You think that if Roe is overturned they will simply say, OK let the states make it legal? For heaven's sake these are people that are fighting to have creationism taught in schools. In 2005!

Once Roe is overturned the next step for the Right will be to make it illegal everywhere, if possible. AFAIK there is nothing stopping Congress from regulating abortions. Do you think the House would not pass a law banning abortions today if Roe was no longer the law of the land? A few more votes and the Senate could well have a majority banning abortion as well.

I sincerely doubt social conservatives will stop at overturning Roe vs Wade. That's just one step for them. We are still fighting the remnants of the Civil Rights battles decades later. Overturning Roe will probably take decades to recsolve as well.

On birth control

There won't be bans on birth control. Please. Whoever says this is either shockingly uninformed or is insulting our intelligence.

When Griswold v. Connecticut was decided, (1965), bans on artificial contraceptives were only in place in a handful of states, and even in those, they were rarely, if ever, enforced. (How the Griswold plaintiffs ever got caught is curious; it's likely they set themselves up to create standing for a test case.) Justice Douglas's reasoning in that case, despite using the regularly-mocked "penumbras" and "emanations" language, at least follows some standards of logic and passes the laugh test, which Roe v. Wade does not. Since the anti-contraceptive statutes had fallen into desuetude and were on their way out, the Court also had the justification that it was simply dragging a few outlier states into the national consensus. There was no such national consensus on abortion in 1973. Even overruling Roe would leave another in place line of cases decided on somewhat better grounds that hold the existence of a right to contraceptives.

Today, there is a national consensus that contraceptives are safe and moral. I challenge any doubters to find any evidence that any state has anything approaching a majority that would favor a ban on contraceptives. Don’t worry about not being able to get your jimmy hats and pills. The type of birth control that anti-abortion people are worried about is abortion.

On interstate travel

There won’t be a federal ban on interstate travel for the purposes of getting an abortion. There is a fundamental right to interstate travel under the Equal Protection clause. This is subject to strict scrutiny. A prohibition on travel to another states to do something legal in that state would unquestionably be struck down. The only federal statute remotely similar in recent memory is the Mann Act, which originally forbade the transportation of a woman across state lines for the purpose of immoral activities, meaning prostitution. As it currently exists, that purpose must be illegal in the target state.

There may be a federal law criminalizing transportation of a minor across state lines for the purpose of procuring an abortion, but that’s as much as Congress can do.

On the Republican party and abortion

This is one of those arguments that is very popular among people who don’t really understand the Republican party. Why is it obvious that the GOP would collapse if it didn’t have the abortion issue, when the issue is at least as important to the Democratic party, at least in the past 15 years? Many Republicans consider abortion very important, and they want to get a Supreme Court constitutional ruling reversed and then get abortion restricted or banned. Democrats have everything they want. Abortion is freely available nationwide, and they are a huge Supreme Court reversal and several rounds of legislation away from losing what they have. Yet the Democrats have been able to rally their party around the threat that greater Republican presence in the political process slightly increases the possibility that something that is still unlikely may come to pass. Look and see which party is more ideologically pure on abortion.

The Republicans can deal with disagreement on abortion. It is not the sole issue binding Christian conservatives to the party. There are some single-issue voters who disagree with the Republicans on everything else, but they are not a political force. The damage a reversal of Roe could do to the GOP is greatly exaggerated.

Absolutely the most intelligent internet forum I've ever encountered. Jane, you're surely on the money when you indicate that Bush would not hesitate in nominating an overtly anti-abortion Justice to replace O'Connor. Not sure you're on strong grounds in believing that most people don't care enough about the issue for it to move them deeply because it doesn't affect them personally.

I happen to oppose the death penalty -- very passionately -- and it's not because I expect to face execution one day. Nor because I sympathize much with the accused, which I don't. It's because it evokes for me something of tremendous symbolic importance: Whether or not the legal process reflects the best in human behavior or the ugliest and most barbaric.

Virtually all of the right wing "culture war" agenda contemplates the taking away of people's liberties under one rationale or another, and the bulk of it has to do with human sexuality. Virtually none of the liberties that would be taken away are liberties I would personally benefit from: I'm not gay, I don't care for porn, I'm too old for sex education, faithful to my wife and don't need birth control. Still, I find the idea of a government so obsessed with controlling individual intimate behavior that it would bend itself out of shape to ban all that stuff to be backward, overbearing and intolerant.
And I'd willingly stand in the rain to vote against any official who thinks he knows better than I do what the scope of my liberties ought to be -- even if I don't intend to exercise them.

To be sure, most of these "liberties" are not liberties of long-standing: they were "discovered" by the federal judiciary starting in the 1950s. On the other hand, most of the prohibitions are not that ancient either, dating mainly from the mid-Victorian era when all kinds of laws and restrictions were passed in the name of social reform. Like the so-called Confederate battle flag, which was designed only in the 1890s, the pedegree of the prohibitions is no where near as dignified as is commonly assumed.

Whether the overturning of these prohibitions is a matter for the courts or the legislatures, and whether the feds or the states, is another matter. But for those who unswervingly oppose "judicial activism" on principle, let me commend the opinion of Mr. Jutice Hughes in the 1936 case of Brown vs. State of Mississippi. That's when the federal courts found that that there was a federal constitutional right not to have a confession extracted by torture. (The decription of the tortures is so vile as to be unfit for polite conversation.) 297 U.S. 278. If anyone believes that the Mississippi legislature of that time would have acted to curtail this conduct, they're delusional. Even the august US Senate could not muster the votes to outlaw lynching, for heaven's sake -- so what course is left but "judicial activism" to bring about a more minimally humane society?

Social conservatives--at least what I think the Left means by social conservatives--want a lot of things they aren't going to get, largly because they aren't entitled to them, e.g. prayer in public school, creationism as at least the co-equal of Big Bang Evolutionism, a constitutional amendment banning gay marriage. What socially conservative leaders are not going to ask for, without eroding their numbers by 70-80% is (1) a complete ban on abortions or (2) any kind of ban or limitation on the right to practice pre-conceptive birth control. Many, many people tend toward social conservatism, or liberalism, without being activist ideologues. Most of these on the conservative side see a huge difference between preventing conception and terminating a pregnancy, particularly one after the first trimester for reasons of convenience. The vast majority of protestant social conservatives practice birth control within and without marriage. They will not tolerate interference with their right to do so.

The claim by pro-choice activists that the real goal of social conservatives is to limit access to birth control is remarkable for its ignorance of those who disagree with them, troubling for its excessive hyperbole and fear mongering and, if they really believe that is the agenda, indicative of clinically significant levels of paranoia.

The best that conervative activists can hope for, and retain rank and file support, is the right to vote on abortion. When they get it, it well may be the end of conservative activism as a significant national force, because the remainder of the agenda simply does not resonate broadly.

There's nothing to stop Congress from passing and the president from signing legislation restricting or even outlawing abortion if Roe were overturned.

Yes, there is. It is called "majority support". They don't have it, or anything close to it. If they did, they would pass the law today.

Sure, the Supreme Court would strike it down. But if there really was solid majority support for banning abortion nationwide, Congress would go ahead and pass the law anyway, knowing the Supreme Court would strike it down, simply for the PR value of the thing. That's what they did with the flag-burning law, the no-guns-near-schools law, and countless other flagrantly unconstitutional but nevertheless politically popular activities.

Take away the right and I suspect you will feel quite differently about it.

Prior to the Court inventing a "right" to abortion, abortion was already legal where Jane lives today. Yes, there was, as you put it, an argument over womens' right to control their bodies, but women were already winning that fight before the Court decided that democracy was for suckers.

Is there a chance that abortion will be banned where she lives? There's a *chance* of anything. It just isn't remotely likely. Personally, I'd be a lot more concerned about the threat to my rights posed by a Court that simply ignores the written Constitution in favor of making stuff up. Suppose they decide that the "equal protection" clause mandates socialized medicine, or widespread income redistribution, or some such similar nonsense?

Publius:

I think I understand your point of view, but you evade a key issue and offer a straw man or two.

Really, what "sexual liberties" are at stake? People can do whatever they damned well please in their homes. Even before Lawrence v. Texas, do you think anyone was actually being prosecuted for sodomy? Plaintiffs have to set themselves up to create a violation of the law. What birth control is anyone trying to ban?

What is a liberty guaranteed by the Constitution and judicially enforceable and what is not and subject to legislative action is the key issue. We live in a republic. We will always have to decide what is a protected right of the individual and what is simply a matter of taste that can be subject to the will of the majority. You should vote in your interests, of course, but you can't claim there's some broad assault on your fundamental liberties if we don't even discuss what is a fundamental liberty.

As for your case, that's an example of the failure of our system of government, in which law enforcement thoroughly violated the rights of the individual with assent from the majority. Do you really think a prohibition on confessions extracted by torture is simply an invented right, the same as the right to abortion? The Fifth Amendment states that no man shall "be compelled in any criminal case to be a witness against himself," and the Eighth Amendment says that "cruel and unusual punishments" shall not be inflicted. The latter provision comes directly from the English Bill of Rights of 1689, which along with the Petition of Right of 1628, was intended to address, among other things, exactly such absuses as inquisitorial prosecutions and confessions extracted by torture. Isn't it but a very short step from those explicit prohibitions to a prohibition on confessions extracted by torture, especially considering those have never been acceptable in the Anglo-American legal system, going as far back as the 1600s? And that's not even considering the equal protection angle. I don't see how you can imply that because the Supreme Court disapproved of confessions extracted by torture, it has license to decide all sorts of moral questions that don't resemble anything in the Constitution.

Dan,

I don't know if it's likely or not. You may be right that the votes will not be there.

My point is a simpler one. Jane believes that if Roe is overtunred we would reach a new equilibrium in a couple of years. I disagree. Social conservatives did not fight for decades to overturn Roe to simply accept states allowing abortions once they get their wish. The ultimate goal of the social conservatives on this issue is to ban abortion.

That tells me that it won't be over in couple of years. If Roe goes under there are 7 states today were abortion would be immediately illegal. Other states, controlled by the GOP, will soon follow suit or be under enormous pressure to do so. Just look at what social conservative pressure did in the Schiavo case. Millions of women like Jane, who never thought of abortion but took it for granted, will wake up to a very changed reality. Remember what happened in 1989 when it seemed the Court was curtailing abortion rights?

I am all for overturning Roe v Wade. I'd love to go to the 2008 elections with that.

This is one of those arguments that is very popular among people who don’t really understand the Republican party. Why is it obvious that the GOP would collapse if it didn’t have the abortion issue, when the issue is at least as important to the Democratic party, at least in the past 15 years? Many Republicans consider abortion very important, and they want to get a Supreme Court constitutional ruling reversed and then get abortion restricted or banned. Democrats have everything they want. Abortion is freely available nationwide, and they are a huge Supreme Court reversal and several rounds of legislation away from losing what they have. Yet the Democrats have been able to rally their party around the threat that greater Republican presence in the political process slightly increases the possibility that something that is still unlikely may come to pass. Look and see which party is more ideologically pure on abortion.

The Republicans can deal with disagreement on abortion. It is not the sole issue binding Christian conservatives to the party. There are some single-issue voters who disagree with the Republicans on everything else, but they are not a political force. The damage a reversal of Roe could do to the GOP is greatly exaggerated.

Quite right and let me just add three other points.

One, it is a mistake (albeit a common one) to think that judicial nominees are important only to the social conservatives in the party. We free market federalist types who were royally ticked at both the Raich (interstate commerce, medical marijuana) and Kelo (eminent domain) decisions took notice that had Reagan gotten a strict constructionist like Bork on the Court instead of settling for Stephens, both decisions would have likely gone the other way. The law and order/national security types are not too keen on holding our criminal justice system to whichever foreign government Justice Ginsberg thinks should be the standard. The fact is that judicial nominees are one thing that matters to the entire base of the GOP and not just on particular faction.

Second, should Roe be overturned (thereby returning the issue to the States), it would probably serve to only strengthen the GOP at its base. Generally pro-lifers have (out of necessity) been better at organizing and trying to move incrementally in the legislature than pro-abortionists. We’ve seen how the pro-abortion crowd has been forced to defend partial birth abortion, taxpayer funding of abortion and groups that promote abortion, oppose parental notification, and other common sense restrictions. That plus people tend to become more socially conservative as they get older – and we have a graying population as well as a large influx of Hispanic (which largely means devout Catholic) immigrants would seem to work in the favor of social conservatives.

Third, even if abortion were no longer a significant factor in American politics in general or the Republican party in particular; political parties who go to “war” with each other don’t just do it on one front. They do it on multiple fronts. One of the fronts that Republicans have been pushing cuts at the heart of Democratic political power which is largely focused on trying to get as many people as possible dependent on some government program. Most of what the Republicans have been advocating at both the State and national level has been centered around the “ownership society” or free market reforms that enable people to provide for their own health care (health savings accounts, association health plans), retirement (personal savings accounts), and education (vouchers, tax credits). Right now we’re seeing the opposition party fighting a rear guard action because they know that as the political paradigm shifts from one of dependency on government to an ownership society ethos, it will seriously erode undercut the primary reason that many people have for voting Democrat.

Thorley,

I think you miss the point.

The argument is that if Roe is overturned two things will happen. First social conservatives will push for the next step, outright banning of abortion (save for rape or incest) which they will get in several states.Seven already have those laws in place. In fact, they will likely push for banning abortion at the federal level.

Then either they will get their way and then millions of people who voted for the GOP but are not socially conservative will feel threatened and leave the party. Or they will be rebuffed by the party and they in turn will leave the GOP. Either way the GOP loses a lot of people, enough to probably turn it into the minority party.

Jane's point only holds if one believes that social conservatives will not seek to ban abortion and will be happy simply with obvertunring Roe v Wade. I doubt that to be true.

Well, sure, when private enterprise makes it possible for all of us to own our health insurance and retirement, we'll just sit around in our backyards, drinking from the wine spritzer spring and eating from the lollipop tree. We won't even NEED to have sex then, we'll be so happy.

Either that, or get a vasectomy.

Yes, GT, obviously in states where a large majority favors tight restrictions on abortion, they will get them. But then that's not a problem for the anti-abortion politicians in that state, is it? You should also realize that before c. 1960, even the rape/incest/life of the mother exceptions were rare; many states banned abortion absolutely. You're really just being irrational. Don't tell me you think there is any realistic chance of substantial abortion restrictions being passed in any state where the Democrats are already dominant.

The Democrats are dominant only in a few states so that doesn't tell me anything. And references to 1960 don't help much. Segregation was legal then as well. The fact is that we live in a very different world today.

I do not claim that social conservatives will manage to ban abortion in the whole US. Yo too seem to miss the point.

The argument is as follows. If Roe is overturned this will not be the end for social conservatives. They did not fight for 3 decades to stop here. They will seek to ban abortion everywhere they can. They will be succesful in several states (seven would automaticaly ban abortion tomorrow if Roe was overturned) and that, in turn will drive millions of people away from the GOP.

Or social conservatives will be rebuffed by GOP politicians (who control the whole federal goivernmnet and much of the states) and that will drive many social conservatives from the party.

Just go to redstate.org or freerepublic. Why do you think they oppose Gonzalez so much? Because he would rule against the WoT? No, because of abortion. These activists want to ban abortion. Period. Overturning Roe is just a step, not the final goal.

GT, stop having the Peter-Joanna argument from Office Space with me. It's not that I don't understand you, it's that I think you're wrong.

1. Democrats, or shall we say, people of socially liberal tendencies, are dominant in states that contain upwards of 40% of the population. References to 1960 do establish how radical Roe was. Segregation is a straw man. Segregation runs up against the Equal Protection clause. Abortion is simply unconnected to the Constitution.

You seem to be confusing, say, "evangelical Christians" with "social conservatives." That's your first problem. I agree that evangelical Christians would prefer not to stop at an overruling of Roe and would prefer to ban abortion entirely. They, however, are only 20% of the electorate -- no doubt the same 20% that wants abortion illegal under all circumstances. They mirror the 20% of left liberals who want 12 year-olds to be able -- no, strongly encouraged! -- to get abortions until the baby teethes. Social conservatives, however, include not only them, but an additional 20% to 40% of the electorate, depending on how you're counting. They're the ones who want more restrictions on abortion, but who don't want to ban it completely.

As much as you wish there were a fundamentalist Taliban theocratic bogeyman who wants to make all unmarried women wear chastity belts, there isn't. Even if there were, it would be a minority of the party, and one that can't dictate terms because when it comes time to pick sides, it will always vote for the Republican candidate. They won't drive politics at the national level. They won't leave. They have nowhere to go, and as I said, they have more concerns than abortion.

2. You vastly overestimate the connection between national and state politics. State politics just don't work like Congress does. Abortion is only an issue for the Republicans in Congress because the Supreme Court made it a federal issue. People vote locally based on property taxes, schools, infrastructure projects, and all sorts of other things that matter a lot more than abortion. People frequently vote for different parties at the state and federal levels.

State parties vary. Democrats in Massachusetts, New York, and California are not like Democrats in Louisiana, Nebraska, and Texas. The latter would not care much about abortion. The same goes for Republicans: the former wouldn't push the issue. I just don't see why putting abortion squarely in the hands of the states would change the balance of power at the federal level.

You also missed the point I was trying to make about the pre-Roe abortion landscape. Most states did not allow ANY exceptions to the ban on abortion, not even for rape/incest/life of the mother. Correct me if I'm wrong, but NO state today would ban abortion without exception. Once we have those three exceptions in, we're in the 60% mushy middle territory, which isn't that frightening to people who weren't strongly committed in the first place.

3. You misunderstand conservative anger over Roe. You must not spend enough time with conservatives. Yes, many of them are angry because they want abortion outlawed. But perhaps as many are angry because the Supreme Court took a contentious issue that was not a constitutional out of the democratic process by arbitrary judicial fiat. By doing so, they only aggravated tensions over the issue. Letting it play out in the state legislatures would have led to the unimaginable situation of allowing people to live in their localities the way they want to live. Now, however, liberals won't budge an inch on the issue because they know their position is more extreme than the consensus and that only two Supreme Court votes hold back the flood of popular opinion. Conservatives are riled up because instead of getting a fair fight, they were sucker punched in the courts. Liberal legal scholars admit this. Most of them admit that Roe's legal argument is nonexistent, and the right is just plain made up. Believe it or not, for a great many conservatives, it's the principle of the matter that counts. That's why many care about Gonzales. They see what the Court did with abortion as an unprecedented arrogation of power. They want that fixed.

AT - You say most states pre-Roe banned abortions absolutely. My impression was very much to the contrary. Do you have any sources or can you say some states that banned abortion absolutely. Rhenquist in his dissent to Roe said that he has no doubt that banning abortion for a life threat would be unconstitutional, implying that the Texas statute at issue did no such thing.

nightengale:

My mistake.

While many statutes [initially] included the exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.
. . .
By the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. 34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's health. 35 Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful justification," leaving interpretation of those standards to the courts. Roe v. Wade.

But note there was no rape or incest exception, nor generally a "health" exception, and that the abortion had to be actually necessary to save the mother's life.

What amazing ignorance. The court did not find solely a "right to abortion" in the Constitution. They found that many of the rights granted combined to indicate that the intent of the Founders was that there should be a right to privacy on the part of the individual. What could be more private than a woman's own body? Therefore having an abortion was a "right" because there was a right to privacy.

I agree with GT on his argument about what the religious right will push for when they get their conservative court to overturn Roe. Notice I say when, not if. Given the age of the justices I think that Bush will be able to tilt the balance of the SC enough to do it. They will push for both state and federal laws. Given the decision reached on medical marijuana I think it fairly likely that the same court that overturns Roe would uphold a federal law banning the procedure. The only question is whether or not the Democrats can keep enough people in the Senate to be able to filibuster it. If they did I would foresee the nuclear option being mentioned again.

The conservatives posting here who love pointing out that the fanatics on the subject aren't numerous enough to rule the Republican party miss a huge point. They don't have to be a majority of the party to get it to do what they want. What they are is numerous enough to make the difference in electoral politics. The power brokers in the party like Rove and Mehlman believe with all their hearts that if they don't keep the Religious Right in the fold they can't keep an electoral majority. They don't fear alienating the moderates because the moderate Republicans are like Jane and couldn't care less whether anyone else loses some rights. She voted for Bush because of the war and didn't care what else he did. Or so she said.

How would it probably happen? The Republicans hold majorities in lots of places including ones that don't necessarily believe in abortion being banned. Roe is overturned. The Republicans are informed that it's time to pay up. Vote for the bans that would be introduced in every state. Make no mistake. It would at least be introduced in every state. The ban would be passed in every Southern state, bar none. It would be passed in almost every Midwestern state, possibly every one. It would be passed in Utah. Probably in most of the West with the possible exceptions of Nevada and Colorado. Did I miss anywhere? I think that goes well past Jane's claim that only a handful of states would ban abortion. All the RRs have to do is convince the politicians that the political fallout from their vote for a ban could be made up by an increased turnout from their side of the spectrum to make up for the loss of pro-choice Republicans and the increased turn out from annoyed Democrats and independents.

Nightingale,

To answer your question, the Texas statute in Roe did allow abortion in the case of protecting the life of the mother. According to the article, when abortion laws were most restrictive up until 1967, there were 42 States that would permit abortions only to save the life of the mother with others allowing more liberal exceptions (e.g. "serious permanent bodily injury" or her "life and health"). (1)

Between 1967 and 1973, about a third of the State’s adopted in whole or part the Model Penal Code provisions which would also allow abortions in the cases of rape, incest, grave danger to the physical or mental health of a woman, or a high likelihood of likelihood of fetal abnormality. There were four States (Alaska, Hawaii, New York, and Washington) that repealed criminal penalties for abortions in early pregnancy entirely (subject certain procedural and health requirements).(2)

I do not know of a single State whose laws did not at least allow abortion in the case of protecting the life of the mother, nor do I know of a single person who does not make that exception.

(1) Abortion Law Development A Brief Overview
http://www.policyalmanac.org/culture/archive/crs_abortion_overview.shtml

(2) Section 230.3. Abortion of the Model Penal Code
http://members.aol.com/abtrbng/mpca.htm

"Amazing ignorance," Jim S? I suggest you be more judicious with your accusations.

That is NOT the argument of Roe. That is the argument of Griswold.

Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. Griswold v. Connecticut.

Now look at Roe:

The Constitution does not explicitly mention any right of privacy. . . . [T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Can you see the difference? Since you can't, I'll spell it out. Griswold says, "the enumerated rights are the tips of mountains rising above the clouds; the mountains themselves are a right to privacy." Roe says, "we've found a right to privacy in the penumbra of other rights. The right to privacy has some relation to these other rights. The right to privacy obviously includes a right to abortion, but we're not sure exactly where it comes from. The end."

Read cases first, accuse later.

Let's step back from the legal argument for a moment and ponder the myriad business opportunities for an enterprising, amoral capitalist like myself should Roe fall and abortion be consequently banned in multiple states. Here are some ideas I've been mentally toying with:

1.) Abortion Busing

Pro: Sure, it's been done (see first comment), but I'm thinking that targeted marketing and amenity options could make this venture highly profitable. "Basic package" would be a trip in a surplus school bus, while "premium" customers would enjoy the luxurious comfort of a Chrysler Town and Country minivan, complimentary wet bar and Alanis Morrisette albums included, naturally.

Con: High start-up costs, and about those gas prices...

2.) Air Taxi and Ferry Service
Pro: An extension of the previous concept to aero and nautical transportation. Would be especially convenient in geographically centered southern and midwestern states where locomotive travel to liberal bicoastal states might prove too late for use of "morning after" pill or RU-486. Abortion ferries could transport customers to international waters to escape the problem of legality and offer gambling and slots for spouses and friends. "Good luck with your D&X, honey! I'll be here shooting craps when you're finished!"

Con: Might not be financially feasible. I'm assuming that, in order for this to work, at least some states would have to ban both RU-486 (a distinct possibility) and the morning after pill (not so much, but I'm betting on traditional Catholics to mobilize their efforts in at least one state to make this happen...).

3.) Innocuous appliances that also function as do-it-yourself abortifacients.
Pro: The coat hanger is too obvious and incendiary, so we'll have to be creative. Maybe some kind of dual-use thighmaster? With our beauty-obsessed society, the two-in-one combination of exercise and abortion could prove irresistible.

Con: Would need to consult women and abortion doctors. Possible ethics questions.

Anyone else have any ideas?

Oh, I'm sure that striking down Roe would cause a temporary electoral backlash. But I think it'd be pretty temporary. By two years after the decision, pretty much all the states where the people live who want abortion to be legal, would have legal abortion. A handful would make abortion illegal. And eventually, all but the hard-core pro-choice activists would contentedly settle into the new status quo.

Jane: I completely concur with your analysis. One reason I think you're right is that the abortion debate tends to be fairly lopsided on a state by state basis.

My own, fair Commonwealth of Massachusetts would undoubtedly enact strict protections of the right to an abortion, and this new status quo would likely be supported by significant majorities of Bay Staters. One rather suspects the opposite would be true in, say, Mississippi. In other words, for the most part, we wouldn't be looking at 49-51 death matches at the state level, and this would result in net lowering of the decibel level on the abortion debate.

My own, fair Commonwealth of Massachusetts would undoubtedly enact strict protections of the right to an abortion, and this new status quo would likely be supported by significant majorities of Bay Staters. One rather suspects the opposite would be true in, say, Mississippi. In other words, for the most part, we wouldn't be looking at 49-51 death matches at the state level, and this would result in net lowering of the decibel level on the abortion debate.

I think that you’re right about it lowering the overall decibel level although I tend to think that most States will gravitate towards some median – legal for cases of rape, incest, and to protect the life of the mother. Some States will probably have a “health” protection provision although they may differ on how it’s defined and whether you need to have a doctor or doctors sign off on it. I’d wager though that so long as the “extreme” exceptions are codified, you’re not going to see too much demand for protecting or outcry against restrictions on the remaining 80 percent of cases which are abortion being used for birth control.

97%, Thorley, not 80%.

GT, obviously I am aware that ardent pro-lifers will attempt to ban abortion. I just don't think they'll succeed in the majority of states, and the numbers back me up. Abortion will be illegal in the Deep South and Utah, will have significant restrictions elsewhere, and will have unfettered access in the blue states.

You overestimate how much energy pro-life, or pro-choice, forces will muster once the issue is settled state by state. First of all, it's much easier to mount a concerted lobbying campaign in fifty states than for one federal government. Second of all, state legislatures are generally much more responsive to their constituents than the federal version. Third of all, most people will lose energy when "their" government is no longer the problem. And fourth of all, it's a lot easier to protest the abortion clinic down the street than pack up and go halfway across the country to picket. Both movements will lose a lot of their fire if the issue is thrown back to the states.

Obviously, that should read "it's much easier to mount a concerted lobbying campaign for one federal government than in fifty states"

AT,

I can understand your points 1) and 2) but not your point 3). You seem to say that social conservatives are angered more by the fact the SC decided the issue than what they decided. I find that not believable. social conservatives care about the outcome, not the process. If they could get a SC to ban abortion they would gladly take it.

Jane,

You may well be right. But I suspect that if a bunch of states outlaw abortion this will keep it alive for many years even of others allow it. I also suspect that as stories of unwanted pregnancies and other results from banning are made public many, many people who now vote GOP will abandon the party. And given that Southerners dominate the national GOP I doubt abortion bans will be limited to just a few states. There will be atempts to ban at the federal level.

In the end see this as a fight between two major forces, social conservatives that want to ban abortions and the millions of weak pro-choicers who haven't thought about this much and have always taken abortion rights, at least in some form, for granted.

We have no way to test this but if what happened in 1989 is any indication the GOP will be in a lot of trouble.

Like I said, you're wrong. It's always sloppy reasoning to base your conclusions on nothing but imputed bad faith.

I don't believe for a minute that conservatives are more upset with the process that produced Roe than the holding of Roe itself. If that were the case, do you really think that conservatives would drop the abortion issue if each state's legistlature followed the legistlative process and removed all restrictions on abortions? Or would conservatives work to overturn a court decision which imposed severe restrictions or outlawed abortion? I feel fairly confident that the answer is no to both questions.

Bad faith?

I have to wonder if you aren't a liberal posing as a conservative to discredit them. Have you ever spoken or debated with pro-lifers, the kind that are actively involved? They couldn't care less about the process, they care about the outcomes.

Note that I didn't say all of them, I said about half of them. You're just wrong. Roe v. Wade was unprecedented in its arrogation of power and its nonexistent legal argumentation. You need to go back to the 1850s to find something similar. Why not read the excerpt I posted above? That is the entirety of the argument for the right to abortion.

Most national conservative politicians would indeed drop the issue. State politicians would, of course, get to work in their states, which is their job.

Or would conservatives work to overturn a court decision which imposed severe restrictions or outlawed abortion?

You don't seem to understand how the separation of powers works.

Neither the federal courts nor the Congress have the power to criminalize abortion nationwide, just as they don't have the power to criminalize any kind of homicide nationwide. There is no federal police power.

State courts are free to find rights to abortion in their state constitutions. A state court cannot place restrictions on abortion. All crimes must be statutory; only legislatures pass statutes.

GT, you really need to stop yapping and actually read what I write.

Well AT we will have to agree to disagree. I have talked and debated with many, many prolifers. I never once met one that cared more about process than about the outcome. Their stated objective has always, always been to outlaw abortion. Most don't understand or care about the legal intricacies of Roe. They simply don't think abortion should be legal. Period. If the SC were to outlaw abortion they would gladly accept it.

Yes, GT, you've talked to the 20% of absolutists who mirror the 20% on the other side. In the middle 60%, at the more restrictive end, federalism and separation of powers definitely matter. How many times do I have to say this? Perhaps you should read more about the history of the Roe decision and its aftermath.

Also, for the last time, a court can never outlaw abortion.

Another thing I bet you didn't know about Roe is that it doesn't even speak of a woman's rights so much as it speaks of a doctor's rights.

"[T]he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated."

Similar language abounds in the decision.

You really don't have a clue what a shocker this opinion was, even to people without strong feelins on the issue.

AT,

That is your opinion. I have seen several analyses that say otherwise, that a SC could, in principle, decide to outlaw abortion.

I think you confuse your own preferences and concerns, which seem more centered on the deficiencies of the process as you see them, with those of the prolife movement in general. I have yet to meet a prolifer or read a prolife document that says abortion is OK so long as state legislatures approve it. Prolifers oppose the result, period. Read what the Catholic Church has written on this, for example. Or the many Protestant denominations.

Pro-lifers think abortion is immoral and a crime. They will not accept it no matter who allows it. Among others, my wife is pro-life. She, and every other pro-lifer I know, could not care less about SC rulings vs state legislatures. She cares about what she sees as a crime and a sin.

GT, yet again, hadn't you noticed that the whole point of this thread, and Jane's original thread, is about what will happen to Repulicans outside the "pro-life" movement? Apparently not.

Of course I noted that.

Do you need me to repeat the arguments yet again?

If you finally admit that the anti-Roe forces are not monolithic and that only some of them are absolutely anti-abortion, then no, you don't need to repeat your arguments. You need to make them.

"Women in New York, Ohio, California and Illinois who can still get abortions are not going to write checks, protest, or vote to ensure that women in Utah and the Deep South can terminate their pregnancies locally"

Ohio? Come visit us sometime. The only way I could see passing any pro-abortion legislation in this state is if both houses of the General Assembly and the Governor's office were to flip from the GOP to the Dems.

I think we could all agree what the political/legislative environment would be for most states if Roe were overturned. However, in some states, I would think the political outcome is less than obvious and it is these states that republican strategists may be concerned about. (Guessing off the top of my head the states would be Ohio, PA, FL, IA and Nev.) In these states it may be difficult to keep the coalition of "social conservative" republicans with "libertatrian leaning" conservatives.

At the national level, social conservative republicans from "anti-abortion" states could still get together on common interests with "pro-abortion" republicans from pro-abortion states (e.g. Giuliani and Arnold). But could social conservatives tolerate/support a libertarian leaning republican (or vice versa) in a closely divided state?

What Roe does for a libertarian leaning republican (or an "anti-abortion" democrat for that matter), particularly running for state office, is that it allows him/her to say "it doesn't matter much what I think of abortion because it is out of my hands". In a world after Roe is overturned, they can't run like that.

Take the case of PA. Look past the fact that Republicans have gotten both a "pro-abortion" Senator and a strongly "anti-abortion" Senator elected. More importantly look at the Governor's office. In recent past the citizens of that state have elected a "pro-abortion" Republican (Ridge) and an "anti-abortion" Dem (Casey, Sr.). Could Ridge be elected as a republican for governor of PA if Roe was not the law? I honestly do not know.

Jim2:

It will be a problem for Democrats too. Their pro-abortion faction will be in the uncomfortable position of actually having to defend in the political arena a regime that doesn't have majority support and probably never had it. They'll oppose restrictions that 80% of the electorate favors, like parental notification. I don't see why the Republicans would scare people away any more than the Democrats would.

I agree there is some uncertainty about the precise political effects in certain states, but will that affect the overall national balance of power? No. You also need to remember that you can't just look at whether voters would be more or less inclined to support a party, you have to see whether they'd be more or less inclined to go to the other party. People who don't care a lot won't move because they don't care. People who do care a lot generally agree with their parties on other issues anyway. As I said earlier, there are some people who disagree with a party on everything except abortion, and abortion is important enough to override all other considerations, but there are very few of those.

I absolutely agree that Anti-Roe forces are not monolithic. A few questions nonetheless.

You suggest that Congress cannot outlaw abortion. How do do distinguish "outlawing abortion" from, say, the partial-birth abortion ban? (This is a genuine question, not a smart alec rhetorical. I don't know enough about the partial birth abortion ban.)

Even if Congress cannot "outlaw" couldn't they effectively eliminate by using other mechanisms. (E.g. using the power of the purse to say that no hospital that receives any federal funds may have an abortionist on their staff.)

If you are anti-Roe/Griswold, would you concede that no one has the right to any surgery? I am not suggesting that any state would outlaw cancer surgery or contraceptives but I could see a state outlawing certain cosmetic surgeries and the Viagra type drugs (assuming of course that these would not be overturned given the Court's expansive commerce clause jurisprudence).

Finally, let's assume Roe was overturned. Let's say that NY passes a law permitting abortion (or that it has a pre-Roe statute). The statute is challenged in federal court and the statute is upheld. Would you acknowledge that some in the current "anti-roe" coalition would decry this decision? Worse yet, what if the federal court struck down the NY statute.

regards.

AT,

I agree that the after-Roe world will be difficult for Dems as well (as my reference to Casey may have suggested). Though of course, the debtes about parental notification and some of the peripheral issues already are fair game if carefully crafted.

"you can't just look at whether voters would be more or less inclined to support a party, you have to see whether they'd be more or less inclined to go to the other party." There is, of course, another option. Disaffected voters won't turn out at all. Much has been made of how Rove et al have tapped into a previously untapped resource of evangelicals. In addition to not voting, they could just be less enthusiastic supporters less likely to volunteer. There may be very few of these people but in close elections they matter a lot.

JimZ:

The Supreme Court struck down a state partial birth abortion ban because it did not have an exception for the health of the mother. A similar federal act could be struck down because Congress has no power to create it. Congress can't simply say any particular act it dislikes is a federal crime. Usually it relies on the power to regulate interstate commerce as authority to pass criminal statutes.

Here's the text of the Partial Birth Abortion Act of 2003.

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

Congress could not just say, "Any doctor who knowingly performs a partial birth abortion" is a criminal. Congress inserted the "in or affecting interstate commerce" phrase so it could enact this under the Commerce clause. However, if you want to know what it means
to, "in or affecting interstate or foreign commerce, knowingly perform a partial-birth abortion," I have absolutely no idea, and I don't think anyone else does. It's possible that it's simply unenforceable.

Would limits on expenditures do much to limit abortion? I have no idea. I doubt it. How many abortions are performed by private practitioners, or in clinics? The federal government doesn't pay for abortions now anyway, so there's no reason a woman couldn't just go to an abortion clinic instead of a local hospital.

States have the power to regulate the medical profession through their general police power. I'm not sure what this has to do with a right to abortion. The whole issue in abortion is that there is the taking of another life, or at least a potential life. The substantive due process cases never held you can or can't elect other medical procedures. A reversal of Roe would have no effect. Yes, Blackmun was counsel to the AMA and when on the Court basically just did what they wanted, but remember that, as substantive law, it's no longer valid, having been supplanted by Planned Parenthood v. Casey, which as I recall, has none of the medical claptrap of Roe Your question really doesn't follow from the discussion, and the issue isn't at stake.

Of course if a state permitted abortion, as many of them would, *some* of the anti-Roe forces would complain. I never said otherwise. A federal court would have no basis for striking down such a statute, if abortion is not a fundamental right.

"Disaffected voters won't turn out at all. Much has been made of how Rove et al have tapped into a previously untapped resource of evangelicals."

I thought that was just because they hate homosexuals? Seriously, evangelicals have more issues than abortion.

However, if you want to know what it means
to, "in or affecting interstate or foreign commerce, knowingly perform a partial-birth abortion," I have absolutely no idea, and I don't think anyone else does. It's possible that it's simply unenforceable.

This simply means peforming an abortion at any place at any time, wrapping it in language that should pass Constitutional muster under a long line of commerce clause cases.

Interesting comments on this thread, but some of the comments don't echo my memories. When Roe was decided, it actually put an end (temporarily for a couple of decades, at least) to the bickering and squabbling that was going on in the country at that time, because it actually DECIDED the issue in a way that couldn't be attacked on the state or Congressional level. For that reason alone, I thought it was a good decision, and it wasn't until I hit law school that I found out how truly bizarre, from a con law point of view, the case really is. As AT mentioned several times above, there is NO foundation in the Constitution to support this opinion as there was in the Griswold case. Overturning Roe would devolve the issue to the states, whre I have no idea what would happen. The legal right to abortion in NY was relatively new when Roe was decided, and it was not obatained easily. My guess is that it would stay the law in NY, but I've misread this issue before. The biggest monkey wrench in analyzing this issue is that Catholics, who by church law have to believe that abortion is immoral (even if they bend their beliefs for contraception) vote most often for the Democrats, while there are a bunch of libertarian minded folks who think that abortion should remain exclusively the province of women to decide, who vote most often for Republicans. So, this is NOT a party line issue, but on the other hand, it could become one due to the hatreds that some leftists feel for rightists and vice versa.

Look, for example, at the gun control issue. This never used to be a Democrat vs. Republican issue until most democrats were found in cities and most republicans were found in suburbs or rural areas. Then the Democrats adopted gun control as a party issue because their winning votes came from urban areas. So, attitudes on gun control are really urban vs. rural attitudes which just happen to coincide with political party attitudes.

My question is just how much are the abortion attitudes incorporated into the political attitudes, or are they very different attitudes? This is what makes it very difficult ot determine ahead of time which states would permit abortion and which wouldn't in the absence of Roe.

I am not buying the claim that sending the abortino issue to the states will lower the decibel level on this issue. We will have just as loud a debate, only with more state activity. I doubt Randall Terry and Kate Michaelman will suddenly decide to take a holiday if Roe were overturned. They'll just have to argue in state after state. Look at the gay marriage issue, its really not a federal issue as there's no Supreme Court decision on par with Roe, but the issue is very contentious and the activity tends to revolve around localities. Even tiny New Paltz made national news over this issue. Even though localities like Mass., San Fran. and New Paltz were acting on the issue, it became an issue in our presidential campaign and in senate races all over the country.

So if a judge/justice sets aside the partial birth abortion ban because it exceeds the limits of the commerce clause and is not one of the enumerated powers, is that judge an "activist"? What do you think Dobson et al would say?

So my point about medical procedures is not relevant because states have the police power to regulate the medical profession? Didn't Texas have the police power to outlaw abortion (or sodomy for that matter)? Sure it did but that police power is constrained by the right to privacy "guaranteed" in Griswold/Roe/Lawrence. (Nice rhetorical turn, arguing earlier in the thread that Roe is more about a Doctor's rights, then turning around later and saying that doesn't matter because of Casey.)

"Seriously, evangelicals have more issues than abortion." I am very well aware of that (did I mention I am in Ohio?). My problem is tht on almost all of their issues they come down on the side of restricting liberty rather than advancing it.

Why do I care what Dobson thinks? Pay attention.

Abortion was prohibited because it was the taking of life, not because it was an arbitrarily unacceptable medical procedure. Your argument is a non sequitur.

It is impossible to have a serious discussion if you simply whine about liberty and refuse to define it beyond "whatever I believe in."

"Why do I care what Dobson thinks?" Because you are in bed with him (metaphorically I presume).

I know why abortion was prohibited, it just seems to me that it didn't matter much to the Court. One might say, the court didn't care if it was life or a arbitrarily unacceptable medical procedure. Sorry if you found my analogy obtuse I will try one last time.

If abortion law says: "thou shalt not remove fetus from woman" and the Court says: "A woman's right to privacy trumps that." What happens if a state law says: "though shalt not remove a spleen (or cancerous tumor) from any person"? If Roe is the law of the land and a resident of the state wants to have surgery they could challenge the statute based on their right to privacy and might well win. In the absence of Roe, the resident should just be told to find a state that will allow the procedure.

I think Roe is a bad decision but it has nothing to do with "life" issues (though morally that informs my views on abortion). Rather I think that the decision is wrong because it usurp power from states and the legislative branches.

P.s. I find you invective so productive.

"Social conservatives did not fight for decades to overturn Roe to simply accept states allowing abortions once they get their wish."

You seem to think that anyone who believes abortion should be illegal cannot possibly have any other beliefs. Such as, for example, the belief that nothing in the Constitution gives the federal government the right to ban abortions.

There are plenty of social conservatives who are also federalists.

Millions of women like Jane, who never thought of abortion but took it for granted, will wake up to a very changed reality.

A changed reality, sure, but not a reality changed in a way that is significant for most of them.

Every wonder why most women aren't outraged by the state-level bans on prostitution? Those bans represent an even more egregious violation of women's right to control their own bodies than abortion bans do. Well, the reason is simple: most women think prostitution is morally wrong. They don't want to engage in it, so they don't really mind being forbidden from doing it.

Around half of women think abortion is morally wrong. The percentage is higher in the "red" states that would actually be banning abortion. So right away, we're only talking about a minority of women facing a "changed reality" -- for the rest, the change would be from "something you are morally opposed to doing is legal" to "something you are morally opposed to doing is illegal". Not something that gets people to the polls.

From that minority of red-state women who think abortion is ok, subtract all the ones who were already voting for the Democrats in the first place.

From the tiny remaining minority of Republican and swing-voter red-state women who think abortion is morally correct, subtract most of the ones who aren't having sex with men they don't want kids with, and don't expect to do so in the future. A ban on doing something you don't think you'll ever need to do doesn't get most people to change their voting habits.

Now subtract out all the women who live near a blue state or can afford bus fare to one, and who therefore can get abortions anyway even if they are locally banned.

What's that leave? 0.01% of the population?

What happens if a state law says: "though shalt not remove a spleen (or cancerous tumor) from any person"?

The person has the operation done in another state. If you can afford surgery, you can afford a Greyhound bus ticket.

What would be most interesting is if Bush's appointments just did nothing to overturn Roe. The hardcore pro-lifers would complain but to no avail. After all they already got their guy elected and his appointments made without the desired result. The hardcore pro-abortionists could quiet down a bit, as the court is already out of their control and abortion is still a right. And Republicans and Dems in general could go about their business, only with one less issue to distinguish them.

AT,

You make excellent points and state them very cogently.

With reference to the 1936 anti-torture case (Brown v. Mississippi), you cite the 8th amendmant's ban on cruel and unusual punishment as a source for a consitutional right not to be torured. Yet that amendment is inapposite because the torture was not the punishment, merely the means by which evidence was gathered. You also cite the fifth amendment's bar to self-incrimination, and this was indeed part of the Supreme Court's rationale. However, the issue was not whether federal investigators could inflict torture to get a confession (clearly barred by the fifth amendment) but rather whether the federal judiciary had the power to overturn a state court conviction that was based on torturing the accused into confessing. To state the issue more broadly, were the Fifth Amendment's guarantees of investigatory niceties mandatory on the states?

It may seem obvious to most Americans living today that their state governments must afford them the right to a trial by jury in criminal cases, must afford them a right to counsel, must not search their homes or persons without probable cause (and generally only with a warrant), nor torture them until they confess. Yet each and every one of those rights--on the state level--was establsihed in long sequences of federal decisions that legal conservatives fought and resisted, crying "States' rights!" every inch of the way. I think civil libertarians familiar with the cases that gradaully (ever so gradually) forced the states to accept the protections of the Fifth Amendment can be forgiven for hearing in the phrase "States' rights" just a cloak for arbitary police power under color of state law.

The connection to the abortion thread is simply this: That without a firm precedent finding a federal constitutional right for a woman to terminate her pregancy (at least in the early stages), it could be swept away on the state level in a twinkling. I remember that New York repealed its then 84-year-old abortion law (prior to Roe) by a single vote. The debate was exceptionally acrimonious, even by the acrimonious standards of the time, when the civil rights and VietNam protests were still sizzling.

I'd just as soon not have to hear about the debate that would rage in 50 jurisdictions as the issue is revisited on the state level if Roe were overturned. I fear that overturning Roe would be just the start of a sequence of angry state level debates that would ultimately divide the country further.

Rather than the happy "federalist" compromise scenario of "we get what we want (on our state level) and you get what you want (on your state level)" I think it would accelerate the extent to which the red state-blue state divide is creating the conditions for a genuine dissolution of the republic. It wasn't slavery so much as a profound culture clash that led to the civil war. The accentuation of points of difference on a cultural values level drives wedges into the sense of what it means to be "American."

For the most part, the debate is not symetrical. Taking away civil liberties that people have enjoyed for decades is not the same as granting them in the first place. The only thing that the march of liberties has taken away from the right wing is their right to dictate to others. Yet still they cavil and moan most piteously that values they can't abide are being forced on them. The only thing that is being forced on them is the right to make choice -- a right that they fervently deny to others.

AT, I defintely hear your point about Roe's weak constitutional footing and believe you when you say that its dubious logic troubles conservatives as much as its outcome. In a nutshell, it looks and sounds like a results-driven decision if ever there was one, right on par with the one where the Supreme Court voted 5-4 to stop the vote count in Florida and award the 2000 election to G.W. Bush. What made the latter decion so patently results-driven in my sight was not so much its result (I voted for Bush myself) but the fact that the court majority ignored 15 years of its own states' rights precedents to get there.

What the Roe Court did was not nearly so hypocritical -- it was not flying in the face of its own oft-stated principles to reach a certain result but rather was extending its libertarian principles to a point that got pretty far from the constitutional text. In particular, as you have pointed out numerous times, Roe was based on an alleged right to privacy that has no consitutional basis whatever.

As you obviously know, but many readers would not, is that the idea of a right to privacy was first given legal clothing in a law review article penned by Louis Brandeis in about 1896. Thus, it was not an idea that was contemporary with the constitution as written and thus could not be extracted from the words of the founders.

I have always been uncomfortable with predicating what I take to be civil liberties on a reed as slender as the right to privacy because a right to privacy is lost when you take it outdoors, so to say. I would have much preferred for the court to have developed a more expansive reading of the ninth amendment over the years, and laid an intellecutal basis for Griswold and Roe on liberty (rights to which do appear in the constitution) rather than privacy (rights to which do not appear in the constitution). The privacy right, to my way of thinking, was an intellecutal slippery slope that seemed easier to tread than the liberty argument but ultimately will prove harder to defend.

"...two thirds of the country supports legal first term abortions. And by my count, a little over two thirds of the country would still have access to them."

Brilliant and civil commentary, one and all. To this quote, I would add that I suspect the percentage would actually be somewhat higher. Here's why: a point that I'm suprised hasn't been mentioned here before is that overruling Roe and returning abortion to the states where (IMHO) it belongs would not necessarily make it a purely legislative issue: certainly, one would expect immediate challenges to outright bans on the basis of STATE constitutional law. Whether these would succeed and whether they would be right to are seperate questions, but at my last count, ten states have an express right of privacy in their state constitutions. Now, of course, practically every state constitution is easier to amend than the federal constitution, but it's probably safe to say that no state constitutional amendment can be adopted as easily or surreptitously as a statute.

Dan,

We'll never know until (and if) it happens. To me your arguments are wrong and I have yet to meet any hard core pro-lifer who thinks overturning Roe is the final or even the important goal. What they want is to ban abortions, period.

I also disagree that blue state women will be OK simply because they can get abortions. It doesn't work that way. Blue staters were not OK with Southern segregation even if they were not directly affected. Plus the GOP's majority is a pretty slim one. They can't afford to lose many votes.

In the ene the only way to find out would be for Roe to be overturned, which I hope happens soon. The only test of my hypothesis is a weak one and it happened in 1989. But it supports my view and not yours. We'll have to wait for the real thing.

Rather than the happy "federalist" compromise scenario of "we get what we want (on our state level) and you get what you want (on your state level)" I think it would accelerate the extent to which the red state-blue state divide is creating the conditions for a genuine dissolution of the republic.

First of all, I think you have a seriously exaggerated idea of the red/blue divide.

But even if you didn't, and your prediction of a nationwide split came true -- why would that be a bad thing? If half the states would rather be a separate country of their own, why not let them go? Unlike in the case of the Civil War, they won't be taking a bunch of enslaved American citizens with them this time.

The United States is a means, not an end in itself. If the existance of the United States makes most of the people it rules over unhappy, then maybe it is time for something else.

Taking away civil liberties that people have enjoyed for decades is not the same as granting them in the first place. The only thing that the march of liberties has taken away from the right wing is their right to dictate to others.

It just seems that way to you because you're viewing the matter from a strictly pro-choice perspective. If you believe that a fetus is entitled to basic human rights, Roe didn't grant civil liberties; it monstrously reduced civil liberties by legalizing the mass-murder of children and forbidding voters from voting to recriminalize it.

I'm pro-abortion, but it is riduclous to pretend that one side is pro-rights and the other is anti-rights. Both sides have rights they want to deny and rights they want to retain or restore.

Finally, I think you're forgetting that discarding Roe would not be the same thing as "taking away civil liberties". Taking away that civil liberty would require that the states (or federal government) pass laws banning abortion -- abortion, like everything else, is legal until someone passes a law to ban it. A large majority of the population of the United States lives in states where such a law would never pass.

To me your arguments are wrong and I have yet to meet any hard core pro-lifer who thinks overturning Roe is the final or even the important goal.

You're moving the goalposts. We had been discussing social conservatives in general. Only perhaps fifteen or twenty percent of the country could reasonably be called "hard-core pro-lifers"; they aren't going to accomplish anything by themselves.

Blue staters were not OK with Southern segregation even if they were not directly affected.

First of all, for most of the hundred years following the civil war, "blue staters" were not merely "ok" with segregation, but practiced it themselves.

Secondly, the two aren't comparable. By the time the rest of the country really got around to dragging the South into the 20th century there was a broad consensus among the majority of the country that all humans were entitled to equal treatment under the law. There is no equivalent consensus with regard to the rights of fetuses vs. mothers.

Thirdly, remember that it doesn't matter if blue-staters care about whether women in red states can get abortions. It only matters if women in red states who normally don't vote for the Democrats care. Otherwise there's no effect on elections. In fact, unless those blue states currently have Republican congresscritters and/or vote for Republican presidential candidates, there still won't be an effect.

The only test of my hypothesis is a weak one and it happened in 1989. But it supports my view and not yours.

You keep going on about 1989. I'm drawing a blank on what happened then that was so important (there weren't even any elections in 1989).

In any event, more recently partial-birth abortions were restricted, in a move widely hailed/condemned as the first abortion restriction in ages. Republicans gained ground in the elections that followed.

Dan,

I think what GT is referring to with respect to 89 is the off year elections in NYC, NJ and VA. Pro choice democrats won all three of those against Republicans who were either anti abortion or flip flopped on the issue (Courter in NJ and Rudy here). These elections were portrayed by many as a referendum on the choice issue. Personally, I never read that much into it because the Democrats likely would have won these races anyway and they were off year elections and with respect to NYC, how big of an issue is abortion anyway?

jim2:

There are rights to life and liberty in the federal Constitution. Minimally, a ban on ordinary medical procedures would fail the rational basis test. I still don't see the point.

Publius:

I haven't read that torture case, but it sounds like an incorporation problem, something which which I am assuredly not familiar. Actually, this looks like a perfect opportunity to use the Ninth Amendment, since the right not to have a confession extracted by torture, while not enumerated, had long been accepted as a right of the people in Anglo-American jurisprudence.

Regarding your other examples of criminal procedure, some are in the Constitution, and some aren't. Honestly, I don't see what the big deal about incorporation is. If you just read the damned thing, Amendment I restricts the power of Congress and on its face does not apply to the states, while Amendments II-IX are not restrictions on government action but enumerations of the rights of the people. There's no reason to think those shouldn't apply to the people against the state government as well as the federal government. We can argue about whether Miranda rights are crap, but I don't see a legitimate argument against, say, the right to be represented by counsel (not necessarily the right to be appointed counsel). These criminal protections are quite diverse, and I don't know if we can conclude much generally from the history of their development.

Yes, the right to abortion could be swept away at the state level. So what? Either it's a constitutionally-protected liberty or it isn't. Just because something wrong has been done for a long time doesn't make it right. By that reasoning, couldn't the Brown v. Board of Education court (right decision, wrong reasons) just have said, "The text of the 14th Amendment clearly dictates our conclusion, but we are unwilling to disturb the longstanding rights of citizens of the several states to decide how they associate in public." Is that right?

Abortion especially is a tricky problem, and one that I think is unique. As much as many try to portray it as rights v. no rights, it's about competing rights: the fetus's right to life and the mother's right to liberty, or privacy, or whatever. The analysis has to be (1) is the fetus a human being, and if so, when, and (2) if the fetus is a human being, should it or should it not be offered legal protection? Those are empirical and moral judgments. Ultimately, constitutional law is about who decides what's constitutional, not what is constitutional. The courts or the legislatures? The federal government or the state goverments? The government or the people? You have to consider institutional competency. Who is better able to deal with questions of morality and empirical evidence, the courts or the legislatures?

Roe's even worse than you say it is. Blackmun didn't even know where his right to abortion came from! Is that any way to run a legal system?

You prefer to base rights on liberty, not privacy? Fine with me. I'd prefer we bring back the privileges or immunities clause, but life's not fair. Path dependency is a bitch. But even if you're clear on your source of rights, you still have to decide the institutional competence question. The abortion case wouldn't be any easier if we had a right to liberty instead of privacy.

"I don't believe for a minute that conservatives are more upset with the process that produced Roe than the holding of Roe itself. If that were the case, do you really think that conservatives would drop the abortion issue if each state's legistlature followed the legistlative process and removed all restrictions on abortions?"

The problem is that different conservatives have different complaints about Roe. The reality of the post-Roe world is that it allowed no realistic restriction on abortion at any stage of pregnancy. Some conservatives desire to ban all abortions at any stage. Other conservatives desire to ban 2nd and 3rd trimester abortions. Still other conservatives want to ban 3rd trimester abortions. Still different conservatives have other ideas about it. Some liberals are likewise amenable to banning certain abortions. You only get a total ban on abortions if you believe that the first group is a majority or could have enough influence to pressure a majority.

That isn't the case. They all dislike Roe, that may well be near a majority. But the people who want to ban abortions entirely or almost entirely are nowhere near a majority.

Elsewhere, "In fact, they will likely push for banning abortion at the federal level."

You should really try naming the Senators that you think would vote for a total ban. I would be shocked if you could realistically get to 30, and without cheating I know for sure you can't get to 51.

The ultimate goal of the social conservatives on this issue is to ban abortion.

Sure, and the ultimate goal of the gun-control lobby's most virulent fans is to ban all or most firearms, and if not at once, then by incremental legislation.

However that example shows us very well that what a group wants in fantasyland, and what a group ultimately gets in the pratical realm, are often two very different things. (The clearest exceptions are, ironically, poorly-reasoned SC decisions like Roe.) The Brady Bill has arguably had little impact (those who can legally get a gun do after a short wait, those who can't have black market options); the assault-weapons ban and the shoddy logic behind it were allowed to quietly expire; the limitations on magazine capacity are just a silly formality, since anyone wanting to exercise a high rate of fire can, with minimal practice, change clips fast enough that it won't make a significant difference in the event of a shootout.

That's what happens when an actvist group's policy preference collides with the double-headed hammer of reality and a broad moderate middle. The moderate middle then focuses on other issues (there are always many available) until some future time when the earlier issue is raised again.

"There are rights to life and liberty in the federal Constitution." There are? Are you thinking of the Declaration of Independence?

What happens if a state law says: "though shalt not remove a spleen (or cancerous tumor) from any person"?

First, such a law has to be passed in that state. That's a pretty high hurdle right there, since most people possess a bright enough bulb to discern that there is such a thing as a necessary surgery (and, by comparison, most abortions aren't necessary). For that matter, most people aren't even bothered by elective surgery including that which is purely cosmetic. (How many states have outright banned sex change operations? How many people are unable to cross state lines to get such an operation if nobody will perform it locally?) There are exceptions of course, generally centering around special circumstances such as restricting access to minors.

Second, as Dan stated, people can cross a state line for surgery -- and often do anyway to access specialists -- and it is even less likely (compared to a state statute) that there would be a federal statute made against necessary surgery.

Third, assuming a state did manage to pass such a law, there are many ways to argue it aside from having Roe -- and why on earth would ANYone want to use Roe as the basis of such an argument? Would you also use a balsawood twig for a crutch?

Sebastian, anony-mouse:

I didn't say they would be succesful, only that they would try. The point is that if hard core prolifers feel (as I think they do) that Roe is simply a step towards a bigger goal they will demand that GOP politicians vote for banning abortions and will abandon those that don't. It doesn't take much for the GOP to lose its majority status.

And GT, as has been pointed out to you repeatedly, those rabid pro-lifers arguably represent a minority in the current political scene. Where does that argument lead?

If, say, xx minority percentage of the population supports the extreme gun-control view of severely limiting or banning in the British tradition, have they gotten it yet? Or has it merely been just one game of badmitton in a comparatively large athletic complex, where the status quo has effectively been maintained by attrition?

Where does it lead?

They represent about 10%-15% of the GOP base and if they decide to stay home it leads to the GOP losing plenty of elections.

They represent about 10%-15% of the GOP base and if they decide to stay home it leads to the GOP losing plenty of elections.

You seem to be forgetting that the Democratic Party exists.

If the Court butts out of the abortion debate, things devolve to the states. That means that some states will allow it while others will ban it. Will that offend the frothing-at-the-mouth hardcore anti-abortionists, who believe that anything less than a total abortion ban? Yes. But what you seem to have forgotten is that it will also offend the frothing-at-the-mouth pro-abortionists, who believe that anything short of complete freedom to abort a fetus anytime up to the very instant of birth is an egregious violation of their rights.

So while a portion of the Republican base may threaten to stay home unless the Republican candidate endorses a position odious to most of the electorate, a portion of the Democratic base will also be threatening to stay home unless the Democratic candidate endorses a position that is also odious to the overwhelming majority of the electorate. Basically, your scenario would only hold true if rabid anti-abortionists had a greater hold on Republicans than the rabid pro-abortionists have on Democrats. That is definitely not the case.

Besides, let's say the Republicans cave to the base and pass a federal law banning abortion in all states. What happens? They lose their majority and Democrats take over. What do the Democrats do? Repeal that law and replace it with one legalizing abortion in all states. After which *they* lose office. Eventually things settle into a status-quo where the hardcore abortion-issue voters on both sides are willing to vote for "their guy", even if he doens't do anything, just to keep the other guy out of office.

That's why gay people mostly vote for Democrats, even though Democrats never do much of anything to help gays. They're "not Republicans". Well, on abortion issues, Republicans are "not Democrats" -- the religious right will vote for them purely on "lesser of two evils" grounds.

Jane,

You're wrong about only the Deep South and Utah banning abortion. You missed Missouri, Kansas, Nebraska and Arizona. I think every one of those would pass a ban and there might be others. South Dakota dumped Daschle and is turning toward enough conservatism to make it a possibility.

Dan,

The social conservatives who are also principled federalists are few. The Schiavo case proved that quite conclusively.

Jim S -

While there may be few principled federalist conservatives, there are plenty more who will seek cover in federalist principles in order to save their own hide.

The Republicans might be able to get a ban on certain kinds of late-term abortions, or a ban on minors crossing state lines, or other extreme cases, passed into Federal law, while the Democrats, if they obtain a majority of Congress (possible if Roe is repealed, otherwise it's a long way off), might get protection for abortion drugs and early-term abortions passed as a federal law.

But there's going to be a strong majority interested in self-preservations who will kick everything in-between back to the states. Which will have the interesting effect of making many possible challengers to exsiting congressmen take a position on abortion, which will only hurt them, no matter what the position.

The social conservatives who are also principled federalists are few. The Schiavo case proved that quite conclusively.

Not really. The Schiavo controversy wasn't about the residents of one state imposing their will on residents of another state. It was about the majority of the voters in one state trying to impose their will within that state, but being rebuffed by the courts.

It is certainly true that Congress violated federalist principles by meddling in the case, but again that is not a good parallel to the abortion issue. Congress wasn't trying to impose its will on all the states. It wasn't even trying to impose its will on ONE state, since the majority of Floridians were in the "keep Sciavo 'alive'" camp. It was trying to impose its will on the court system of a state. That is why the Congresscritters voted the way they did -- the vote mattered a lot to the right-to-lifers, was opposed by the euthanasia lobby (nowhere near as well-funded or organized as the pro-abortion lobby), and didn't really matter to most other people at all.

In other words, it violated federalism, but in a trivia way.

It wasn't even trying to impose its will on ONE state, since the majority of Floridians were in the "keep Sciavo 'alive'" camp.

Oh, that's just bunk. I can't find a single poll conducted on either a state or nationwide basis where a majority of respondents expressed the desire to reinsert Terri Schiavo's feeding tube. And those lovely folks protesting outside the hospice were anything but a representative sample of Florida's population.

What all this moral posturing over abortion comes down to, is a symptom of historical ignorance. Somehow the Greeks and Persians managed to accomodate the practice without falling to pieces like today's outraged moralists. We would do well to emulate them.

Oh, come off it. The Greeks and the Persians had established religion, no protections for criminal defendants, murdered their children after birth, sure as hell didn't allow gay marriage, practiced chattel slavery, and, incidentally, each conquered and ruled despotically over about 10% of humanity.

AT,

Your statement that abortion is a tricky question might be something of an understatement. Has any topic triggered more responses on this board?

Tell me, in your memory, did the moral question of abortion always center on the rights of the unborn?

Going back about 40 years, my memory is that abortion was considered wrong -- by those who so considered it -- because unwed pregnancies were seen as the wages of sin, much the way VD was so regarded.

An aside: My sister's Godfather, a man called Paul DeKruif, developed a treatment for syphilis before the discovery of pennicillin. Ardent Christians went to huge lengths to keep the treatment from being licensed, and once licensed from being publicized. In their eyes, a cure for syph would lead to promiscuity, crime, the breakdown of the family and social collapse. That was in the 1930s. My memories of debate/discussion in the early 1960s was that the same kind of thinking applied to the question of legalizing abortion. It was only later that the idea that a fertilized egg is a human being became a front-and-center argument. At least that's my memory.

It has been asserted on this board that under Roe, an abortion can be performed up to the day before delivery -- clearly the killing of a baby. Yet Roe says no such thing. This is from the Roe headnote: "For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

I asserted in a prior post that when the conservatives seek to ban abortion, they are taking away a right and that this taking away of a right is asymetric. You pointed out that the issue is rights in collision: the right of the mother to terminate a pregancy versus the right of the fetus to not be terminated. Now that's the nub, isn't it? At what point does the right to life and legal protection attach?

Clearly, the Roe Court agreeed that those rights attach at some point well prior to birth ("viability") and that this furnishes the compelling state interest that permits restrictions on the otherwise plenary right of the mother to end a pregancy. For those who see a fertilized egg as a full-fledged human being, there can be no such right to terminate a pregancy except perhaps as a life-saving intervention. Yet the assertion that a fertilized egg is the same as a full-fledged human is certainly not self-evident, any more than the assertion that an acorn is the same as a fully-fledged oak tree.

To be sure, the idea that a fertilized egg enjoys full human rights is an article of the Catholic faith (due to the concept of the immortal soul), but that surely can't form the basis of secular law. Or can it? Or should it? Or is that really what's been going on all along -- assertions of religious perspectives?

"South Dakota dumped Daschle and is turning toward enough conservatism to make it a possibility."

This is precisely your problem. Finding a majority of people to dump Daschle and finding a majority of people who will completely ban abortion are different by orders of magnitude. (I mean that literally. For every 1,000 people who would vote against Daschle in the US I strongly suspect you would have difficulty finding 100 who would vote for a complete abortion ban.)

Tell me, in your memory, did the moral question of abortion always center on the rights of the unborn?

Why is that an interesting question? Unless someone invents a time machine, isn't the relevant question "what is the moral basis of the pro-life position today"? Rape was, for millennia, considered wrong because it violated a man's property -- namely, his wife or daughter. Today we understand that it is wrong because it violates the rights of the woman. Does the fact that the moral case against rape *used* to be based in gross misogyny mean that the modern case against rape is suspect? I don't think so.

The last century or two of Western history has seen an enormous increase in recognized rights. The notion that women, racial minorities, and non-Christians are entitled to the same rights as white male Christians is very new. So is the notion that homosexuals should be allowed to practice their lifestyle. So is the notion that children and animals have ANY rights at all. Why, therefore, is it shocking that fetuses -- long considered, like children themselves, to be a form of property -- should come to be widely seen as having rights?

You seem to be trying to imply that the pro-lifers are motivated by a desire to punish sexuality. That is both false and insulting; you may as well say that pro-choicers are motivated by a desire to murder children.

It has been asserted on this board that under Roe, an abortion can be performed up to the day before delivery -- clearly the killing of a baby. Yet Roe says no such thing.

"Roe" is typically used as shorthand for "Supreme Court abortion policy". Roe allowed restrictions on the third trimester, but later cases pretty much removed that.

Clearly, the Roe Court agreeed that those rights attach at some point well prior to birth

That is clearly not the case. The passage you quoted allows the life of the fetus to be terminated for the sake of the health of the mother. If fetuses had a right to life under Roe, the "health" provision wouldn't exist.

And of course, in practice, the same doctor performing the abortion ends up determining if the woman's health is threatened. Since no standard of magnitude is given, and since virtually all pregnant women have health problems of one kind or another, the practical effect is that third-trimester abortions were unrestricted as well.

Again, I'm pro-choice. But I'm also sick to death of disingenuous pro-choice arguments. Roe and the subsequent Supreme Court rulings *did* make restrictions on abortion all but impossible. It just isn't accurate to claim otherwise.

Oh, come off it. The Greeks and the Persians had established religion, no protections for criminal defendants, murdered their children after birth, sure as hell didn't allow gay marriage, practiced chattel slavery, and, incidentally, each conquered and ruled despotically over about 10% of humanity.

Don't forget the subjugation of women and their forced exclusion from political life. And yet, excepting this and just a few other issues, I'll gladly defer to antiquity over Christianity on most ethical questions any day. I like my morality free of resentment and castratism.

Publius: Before the Roe vs. Wade decision was handed down, I was volunteering for a campaign to legalize abortion in Michigan by ballot initiative. All the arguments I heard from the other side were variations on "you're killing babies." I suspected that "unwed pregnancies were seen as the wages of sin" was the antis second reason, but it certainly wasn't the only reason, and it wasn't something they would say in public. This was in a town that was more than half Catholic, so it might have been different elsewhere.

Let's not let that obscure your main point: that nowhere in American jurisprudence before RvW nor in the English common law was a fetus ever treated as a human. The anti-abortionists often seem to me to be trying to pull a fast one - slipping in the notion that abortion is murder as returning to old laws, when actually such things are new law.

Abortion was not originally banned because it was considered murder of the fetus, it was banned because back when doctors didn't wash their hands between patients, it was horrendously dangerous to the mother. It was even substantially more dangerous than a normal delivery attended by a bloody-handed bacteria carrier of a doctor. Of course, I'm sure the "wages of sin" argument played a role, too - American bans on abortions originated in the Victorian era after all - but it wasn't the main reason.

And when abortion was banned, the penalties were far lighter than for murder. Nor would someone who struck a woman and caused the death of the fetus be charged with murder - it was a crime all right, but it wasn't a capital crime. The only law that considered killing the unborn to be murder was church Canon Law, where the maximum Earthly penalty is excommunication...

Publius:

Tell me, in your memory, did the moral question of abortion always center on the rights of the unborn?

Being less than several thousand years old, I can't answer that.

I can, however, provide secondary sources for your benefit.

The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role in the enactment of stringent criminal abortion legislation during that period.

An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed three causes of "this general demoralization":

"The first of these causes is a wide-spread popular ignorance of the true character of the crime -- a belief, even among mothers themselves, that the foetus is not alive till after the period of quickening.

"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal life . . . .

"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection." The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of state medical societies "in pressing the subject."

In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less."

I agree that if abortion statues had flourished in the 1920s and 1930s, we might interpret them as part of a Progressivist morality crusde, but the movement toward criminalization of abortion began seriously in the mid to late 19th century.

At what point does the right to life and legal protection attach? . . . Yet the assertion that a fertilized egg is the same as a full-fledged human is certainly not self-evident, any more than the assertion that an acorn is the same as a fully-fledged oak tree.

Thank you for proving my point. The asserion that a zygote, embryo, or fetus is not the same as a "full-fledged" [undefined, yes?] human being is also certainly not self-evident. Why is your view on the matter any better or worse than anyone else's? And if that is the case, why is the judiciary better suited to decide the issue than the people through their elected representatives?

Libertine:

Nothing wrong with chattel slaves fighting to the death for our entertainment, is there? Too bad the Christians put a stop to that.

markm:

Abortion was not originally banned because it was considered murder of the fetus, it was banned because back when doctors didn't wash their hands between patients, it was horrendously dangerous to the mother.

See above. Anyway, your timing is a little off. Surgical sepsis was more of a very late 19th century thing, long after the anti-abortion movement began in this country.

The slippery slope of the reactionary right and Christian Conservatives doesn't just stop at Roe.
How about challenges to Griswold vs. Connecticut, the SCOTUS decision giving women access to BIRTH CONTROL?

>>>On the 40th anniversary of the landmark Supreme Court decision that affirmed that the Constitution protects a privacy right to use birth control, Members of Congress and leading organizations stood together to celebrate the anniversary and to warn about new efforts to undermine this right. Griswold v. Connecticut may be 40 years old today, but the issues it resolved have risen anew in 21st century America...
Recently, pharmacists with personal objections to birth control have imposed their beliefs on customers by refusing to fill perfectly legal birth control prescriptions and, in some cases, also refusing to return the prescription slip to the customers. In the House of Representatives, Reps. Carolyn Maloney (D-NY), Christopher Shays (R-CT), Debbie Wasserman Schultz (D-FL) and Joseph Crowley (D-NY) have introduced the Access to Legal Pharmaceuticals Act, which would guarantee pharmacies fill all legal prescriptions (http://www.house.gov/maloney/issues/choice/ALPhAPacket.pdf). The bill has been introduced in the Senate by Sen. Frank Lautenberg (D-NJ)...
“It’s amazing that in 2005, in the Land of the Free, women have found their right to access birth control challenged,” said Rep. Maloney. “The Supreme Court decision made 40 years ago today should have removed all doubt and worry over whether women can get the birth control pill. It is important to remind all Americans today that the right to use birth control is the law of the land.”
http://72.14.207.104/search?q=cache:FJFyJT4eRb4J:www.house.gov/maloney/press/109th/20050607Griswold.htm+Birth+Control,+Supreme+Court&hl=en&ie=UTF-8

Now, reading Jane's line:

"The only people who do care that much are political activists, some health care workers, and the fairly small percentage of the population which is regularly having sex with people they don't want to bear children with."

That percentage of the population must be practicing abstinance because just as there is no "originalist" Constitution right to an abortion, (as opposed to the originalist right to own slaves) there is NO "originalist" right to access birth control.

Now, if you on the pro-life side are saying that no court would disallow that private decision about a woman's body, remember what the District Court decision was on the sale of marital aids in Alabama.

THE LAW:
On the last day of legislative session in April 1998, the Alabama House and Senate passed Senate Bill 607 unanimously, as an addition to the obscenity statute of the state law that "makes it unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs" and "Any person who violates this subsection shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000) and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year".
http://www.williamsversusalabama.com/court_briefs.php
THE COURT DECISION:
>>>Before BIRCH, BARKETT and HILL, Circuit Judges.
BIRCH, Circuit Judge:
In this case, the American Civil Liberties Union (“ACLU”) invites us to add 1
a new right to the current catalogue of fundamental rights under the Constitution:
a right to sexual privacy. It further asks us to declare Alabama’s statute prohibiting
the sale of “sex toys” to be an impermissible burden on this right. Alabama
responds that the statute exercises a time-honored use of state police
power—restricting the sale of sex. We are compelled to agree with Alabama and
must decline the ACLU’s invitation."
http://www.williamsversusalabama.com/pdfs/williams_728.pdf

So not only is a woman's uterus being threatened with legislation, but the rest of her genitalia is now at risk. This is why "let the states decide" isn't that appealing an option.

This right winged agenda doesn't stop with women, however. Look at Lawrence vs. Texas, the case where two consenting gay male adults were arrested for having sex in the PRIVACY OF THEIR OWN HOMES. When the case went to the SCOTUS, the usual suspects dissented (Rehnquist, Thomas and Scalia), but read the words of their dissent:

>>>Chief Justice William H. Rehnquist and Clarence Thomas also dissented. Thomas wrote a separate opinion in which he found the Texas law "uncommonly silly." He wrote that: "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." 5 He said that if he were a Texas legislator, he would vote to repeal the law. However, he could not agree to strike it down as unconstitutional because he found no guarantee of privacy contained within the words of the U.S. Constitution."
http://72.14.207.104/search?q=cache:TQalG3rXBQYJ:www.religioustolerance.org/hom_laws6.htm+%22marital+aids%22,+Supreme+Court&hl=en&ie=UTF-8

And heterosexuals aren't out of the thicket either. Remember 1986, Bowers v. Hardwick?

>>>"The justices voted 5-4 to uphold the right of states to ban any form of sexual activity that they may decide is deviate. Justice Lewis F. Powell Jr., later said publicly that he regretted his vote for the majority. 2"
http://www.religioustolerance.org/hom_laws3.htm

This was only recently overturned...by a margin of...you guessed it...5-4.

There is FAR MORE at stake in the WAR ON SEX than just Roe v. Wade.

--Cobra

That percentage of the population must be practicing abstinance because just as there is no "originalist" Constitution right to an abortion, (as opposed to the originalist right to own slaves) there is NO "originalist" right to access birth control.

You seem to be pretty confused about this issue. Just because an activity isn't protected by the Constitution doesn't mean that activity is illegal or will be made illegal. For example, you have no Constitutional right to own or drive a car, yet owning and driving a car is still legal.

As for the originalist right to own slaves -- you are correct that such a right originally existed. It was, however, removed by amendment. People who favor an originalist interpretation of the Constitution *do* include the amendments in their interpretation. Did you not know that?

The GOP was deemed finished when the USSR fell.

The reasoning: no more need for defense would mean the GOP would lose those who worried about communism. And the dollars freed from the defense budget would all go to social programs. That would convince America's voters that big government was the dream machine, an autopilot to operate their lives.

Ergo - Democrats forever.

Dan,

Maybe we have different definitions of "originalism."

>>>The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification."
http://72.14.207.104/search?q=cache:bE0G9U_RyvIJ:en.wikipedia.org/wiki/Originalism+Clarence+Thomas,+%22originalism%22,+%22quotes%22&hl=en&ie=UTF-8

Trying to read the minds of the Constitutional Congress of 1787 and applying that to today's laws is the problem I have. Look at what Justice Thomas has to say:

>>>"The Constitution means what the delegates of the Philadelphia Convention and of the state ratifying conventions understood it to mean; not what we judges think it should mean." - Justice Clarence Thomas (Ibid.)"
http://en.wikipedia.org/wiki/Originalism#Justice_Thomas

>>>As for the originalist right to own slaves -- you are correct that such a right originally existed. It was, however, removed by amendment."

How long did that take, how many Americans suffered under slavery during that period, and how much did the nation suffer through changing the originalist folly?

Now, if your belief is as you quote:

>>>"People who favor an originalist interpretation of the Constitution *do* include the amendments in their interpretation. Did you not know that?"

We both understand that Congress can make any Amendment to the Constitution they wish, as long as there is the 2/3rds majority. That's why I listed the above state decisions on sex, because sex isn't specifically listed in the Constitution, and by Clarence Thomas's interpretation that there is no right to privacy. All sorts of outrageous laws can be inflicted on the American public BESIDES abortion.

--Cobra

Maybe we have different definitions of "originalism."

The definition you quoted (from Thomas) is the one I'm using. Apparently you don't understand it, however. Originalists accept amendments, because the original Constitution allowed for modification in the form of amendments, e.g. the 13th amendment that outlawed slavery. The original Constitution did not, however, allow for modification in the form of Supreme Court whim, ergo originalists do not accept Roe vs. Wade.

How long did that take, how many Americans suffered under slavery during that period, and how much did the nation suffer through changing the originalist folly?

Both originalism and the system you personally favor (i.e., "the Supreme Court ignores the Constitution and just makes stuff up") left slavery in place. After the 13th and 14th amendments were ratified, originalism opposed slavery and favored equal rights for blacks. Unfortunately, adherents of your "ignore the Constitution, make stuff up" system managed to keep the flagrantly unconstitutional "Jim Crow" laws in place for the better part of a century afterwards by deliberately misreading the Constitution.

Today, originalists believe that slavery and discrimination against blacks are unconstitutional because the written Constitution says so. People such as yourself believe that slavery and discrimination against blacks are unconstitutional solely because the whims of five Justices say so. I believe the former is a more stable solution. There is a system for amending the Constitution, and it isn't "get the Senate to ratify five sympathetic Justices".

OK I read this to mean that there are other individual rights that are not specifically mentioned in the constitution that are protected anyway. I am not very failure with the specific arguments regarding why Roe is "bad law" but if it is simply because the "right" to privacy is not specifically mentioned in the constitution you have to explain what exactly the 9th amendment is supposed to mean.

Many people like to talk about the "right" of free association, which is not mentioned anywhere in the US constitution, but yet is the basis of numerous Supreme Court decisions, to my knowledge there is no movement to overturn these decisions because of the terrible activist law created by citing this "right".

I am not very failure with the specific arguments regarding why Roe is "bad law" but if it is simply because the "right" to privacy is not specifically mentioned in the constitution you have to explain what exactly the 9th amendment is supposed to mean.

What do you want it to mean? You're suggesting it is a blank check for the Supreme Court to declare anything a "right," which it surely can't be in a system of federalism and republican government.

Let's not let that obscure your main point: that nowhere in American jurisprudence before RvW nor in the English common law was a fetus ever treated as a human.

MarkM,

I'm quite sure this is wrong; the place to look is in inheritance law (where the question of whether someone died without heirs was important). English common law held that unborn children counted as descendants after quickening.

The moral dimension cannot be ignored as being inconsequential or dismissed as being irrational. A fertilized egg is not a fully formed child outside the womb. This is self-evident. However, left undisturbed, the fertilized egg becomes a fully formed human being even inside the womb. This is biology, not theology. For many of us, separate and apart from whatever we may or may not believe, it is immoral to harm a fully formed human being outside the womb. Thus, we have laws against assault, sexual abuse, murder, etc. For a large slice of those in the foregoing class, we also have feelings in the moral arena for the unborn child, regardless of its developmental stage. The question is one of balance: Does the mother's right to control her body trump the forming child's right to go to term and live outside the womb? Some say yes, others say no. What offends are those who speak with such utter contempt for opposing views. In some the posts above, there is a complete disregard for any view grounded in any way on the Judeo-Christian ethic or any other moral foundation. For my money, secular bigots are every bit as offensive as religous bigots.

AT,

Thank you very much for your citation of the AMA discussions from the committee on criminal abortions of 1857. It was most informative and certainly goes to the heart of my question: When did "abortion as murder" become a touchstone argument.

Implied in their arguments are a number of fascinating implications, among them that abortion was a widespread (even if frowned on)practice at the time. That the fetus was not seen as human was characterized by these doctors as due to the ignorance of their patients. The discussion serves as both a historical reference for the evolution of ideas and as an attestation that even then, 150 years ago, abortion was a service that was much in demand.

Dan: I'm sorry you take umbrage at my suggestion (actually a question) that the ban on abortion stemmed orginally more from an effort to control promiscuity. Nevertheless, given the near obsession on sexual behavior topics that seem to animate a certain class of passionate abortion opponent, I can't help believing that controlling sexuality is what it's really all about for them.

You also argue, if I may summarize, so what if the "abortion as murder" idea is of relatively recent coinage? Why should that mean the idea is invalid? An excellent point. Our thinking does evolve over time and we see things through the light of experience and what has gone before in new ways. That is precisely why an overly literal reading of the founding documents can disserve the public interest.

Both Dan and AT ask, rhetorically, why judges are better fit to discern the public interest than our legislatures -- this as part of the general critique of "judicial legislation" said to characterize the Warren Court. And indeed, many of the decsions for which the Warren Court is best known were decisions that invalidated state laws and state legal procedures with respect to racial and gender discrimination, free speech and criminal procedure (right to counsel, right to jury trial, requirements for warrants, the "Miranda rights," various death penalty statutes, etc.), and, yes, porn, birth control and abortion. Taken as a whole, though, these invalidations of state-level laws and procedure can be seen as falling under a simple mandate: If the feds can't deny people certin rights--due to the Bill of Rights--the states can't either.

I would also point out, though, that many of these decisions were a lot more nuanced than some have characterized them. Often and often, they were not a veto of some legislative fiat but rather a critique of an existing procedure as fundamentally unfair and an invitation for legislatures to re-enact their laws with suitable procedural safeguards included. (The death penalty cases are an example of this.) I would submit that Roe was another example in the way it invited states to legislate even abortion proscriptions at a point of "viability" (some where around week 24 of a preganancy), provided only that there be procedural protections that to assure that the mother's life or health would not be legislated away.

I confess to thorough ignorance about what state laws now say, and what current abortion practice actually is with respect to mid-term or later procedures. Web searches have been singularly unenlightening. Deliberate misrepresentation seems to be the order of the day, the ugly half-sister of politicization. Some say that there are lots of late term abortions, into the third trimester, exemplary of moral depravity. Others say it simply never happens unless the mother is facing death or serious bodily harm unless the procedure is performed. I think some facts would be in order here, but I'm damned if I know where to find them.

Why should judges rather than legislatures outline how rights should be defined? I think it depends on what you think justice is and what you think the judge's role should be in seeing justice done. For some, the judge's role is circumscribed to appllying the written law in literal fashion. For others, there is an underlying principle of fairness and respect for human rights to which law aspires, and thus an effort to read to law consistently with that ideal.

Those philosophies have collided in a number of death penalty cases arising from state procedures. Justice Thomas, espousing a literalist view, maintains that fairness consists in no more than procedural fairness, and that if proper procedures were observed, justice has been served. Following this line of thought, he has even argued (in a concurrence, if I recall) that actual innocence is not a suitable basis for appeal to the federal courts on due process grounds. I believe it was Justice Stevens (in dissent) who characterized this position as "freakish." I'm inclined to agree. At a minimum, the first concern of the judicial system should be establishment of procedures to ferret out the truth, not the erection of procedural barriers to cover up the truth.

So again, why is it up to federal courts, rather than state legislatures and state courts, to define individual rights? Maybe it's because state courts and state legislatures have such a long track record in denying them.

Publius:

Hardly any of what you said has anything to do with abortion. At the end, you just say this:

So again, why is it up to federal courts, rather than state legislatures and state courts, to define individual rights? Maybe it's because state courts and state legislatures have such a long track record in denying them.

This is simply tautological. One must have a right before it can be violated. You can't escape the initial question of what is a right and who decides what it is. I also note that the other issues you discuss, like criminal procedure, racial equality, and free speech, are all based on Constitutional text. There is a colorable argument that a right to privacy inheres in the emanations of the penumbras of other rights, but how does one get abortion from that? The Supreme Court has never made an effort even to explain how that relationship works. If the Supreme Court can declare something a "fundamental right" and remove it from democratic discussion, even if that right is totally unrelated to anything in our federal Constitution, and indeed does not even make an effort to relate it to anything in our Constitution, what limits are there to its power?

Abortion will be illegal in the Deep South and Utah, will have significant restrictions elsewhere, and will have unfettered access in the blue states.

I keep seeing references to Utah, with people assuming that, post-Roe, abortion would be totally abolished in the state. The assumptions seem to be that Utah has a lot of Mormons and Mormons are strictly anti-abortion. These assumptions about Mormons are wrong. Although Mormons are overwhelmingly pro-life, the faith's doctrine admits abortion in cases of rape, incest, when the mother's life is in danger, and when the fetus has little chance of surviving past birth.

No doubt Utah would be among the first to restrict abortion, but restrictions would very likely be focused on elective abortion used as birth control.

Mormon views diverge from evangelical Christians in other areas, including embryonic stem cells. The Church has issued a formal statement in favor of stem cell research and Mormon politicians (mostly Republican) have crossed over the aisle to support increased stem cell funding.

given the near obsession on sexual behavior topics that seem to animate a certain class of passionate abortion opponent, I can't help believing that controlling sexuality is what it's really all about for them.

Well, you're wrong. The primary motivating factor of the "right to life" movement is a belief that a fetus is a human life.

Our thinking does evolve over time and we see things through the light of experience and what has gone before in new ways. That is precisely why an overly literal reading of the founding documents can disserve the public interest.

I'm sorry, but no. The Constitution allows for amendments. If the way we see things changes over time, we have the means to change the Constitution to suit our new view of how things should work. What the Constitution does not allow is for new rights to be granted or revoked because 51% of voters and/or five Supreme Court justices say so.

AT,

I'm asking what those who think that RvW is bad law think the 9th is supposed to mean. The language is clear and if that means that the judiciary has a blank check, then it does, and if you don’t like it, change the constitution. For the record I reject that characterization outright as wholly inaccurate and you still need to explain what it means at any rate, you want to protect the "purity" of the constitution while at the same time rejecting out of hand an entire amendment of the BoR.

I can tell you what I think it means, but I'm not the one who is asserting that RvW is bad law. I'm also not suggesting that it's good, but it seems that mean that if the plan meaning of the 9th is taken into consideration that fact that "privacy" is not mentioned in the constitution is irrelevant. Also not mentioned in the constitution are the right to "free association" and the notion that corporations have "rights", yet there seems to be little motivation among the strict constructionist \ original intent crowd to alter these bits of jurisprudence (in fact I have never heard any strict constructionist \ original intent refer to Santa Clara county v. Southern Pacific Railroad with anywhere near the same level of contempt as RvW despite the fact that it would seem to be a much more egregious example of judicial activism).

AT,

You state "One must have a right before it can be violated. You can't escape the initial question of what is a right and who decides what it is."

Oh really? Where is the Constituional language that says we can meat on Fridays, or or hop down the sidewalk instead of walking, or simply sit around and loaf if we feel like it? Yet we take it for granted that this and a million other activities, large and small, fall within our "rights" to do.

Saying that you don't have a right unless the constitution says you do begs the question that the Ninth Amendment answers. The reason the ninth amendment was put there was to address the fears expressed by a number of delegates to the Constitutional Convention that by enacting a Bill of Rights, which enumerated specific rights, that the enumeration would be exclusive: That no activity not named would be protected from governmental invasion.

The meaning of the Ninth Amendment, then, is that the indivduals do not have to prove that they have a right to act in some way. Rather, the burden is on the government to show it has the authority to impose restrictions on the individual. Presumably, there must be some compelling state interest, not some arbitrary whim to make people dance to their tune.

In this way a "right" might be articulated for the very first time when some government body decides to restrict some activity--and the right is established as a "right" when some court strikes down that restriction.

Philosophical question: Is liberty anything more than a collection of articulated "rights"? I would submit that it is but I'm certainly open to your interpretation.

Obviously, the metes and bounds of "liberty" (or "ordered liberty" as the courts sometimes say, oxymoronically perhaps) are mushy to discern. Equally mushy, though, is the government's so-called "police power", the consitutional basis of government's right to regulate our conduct as individuals. Where's the constitutional text for the police power? I submit that there is none -- that's why it is an implied power -- but none of us doubt that it is both real and legitimate.

For Dan, the compelling state interest in outlawing abortion might lie in preserving the life of a fetus, a human being. In opposition, abortion rights advocates might argue that before some point in development--minimally, at the zygote stage--the fertilized egg lacks so many attributes of humanity (eyes, ears, nerves, brains, human form) that there is no compelling state interest in its protection -- or at least not against the desires of a mother not to go forward with a pregancy.

Dan -- when you use the term "fetus," do you include the fertilized egg at inception, or are you referring to a later stage of development, say, after the eighth week of development? That's the dictionary defintion of "fetus."

I don't think it's beyond peradventure for a court to rule that the state's asserted interest in a fertilized egg is not sufficiently compelling to allow it to overrule the wishes of the mother. Thus, it is not so much finding a constituional right to abortion as it is limiting the scope in which the government can interfere with an individual's desires.

Obviously, whether or not the government has a compelling interest in the protection of zygotes is a point of major social contention, a point on which (like so many others these days) the country is more or less equally divided (depending on how the question is phrased). (I rather suspect that if it is phrased narrowly to focus on the zygote/blastula stage, the division would not be even close to equal, but perhaps that does not matter. If every state in the union voted to legalize abortion, would the anti-choice crowd shut up and go away? Somehow I doubt it. There's too much dogmatic thinking driving the argument.

Barring a religious conviction, I can see why a judge might doubt the factuality of the assertion that a mere fertilized egg is the SAME as a human being. Yes, it is "human", at least in orgin, and yes, it is a "being", in a broad sense of that term, but the term "human being" conjures up something a lot more recognizably human than a zygote.

Indeed, the asssertion that a fertilized egg is a full fledged human being with all attendant rights to care and respect leads to some absurd results. For instance, it now appears that something like 20% of all fertilized eggs are expelled before they implant. If we deemed each one of them human, we'd be culture-bound to hold funerals for a million tampons per month.

And what about all those frozen embryos in fertility labs across the country? The pro-life view is that it is crime against humanity to use them for stem cell research that might actually help someone, but the altnerative, flushing them down the john, has no moral implications at all. Yet that destructive luddite perspective follows logically from a supposed concern for the preciousness of human life.

The problem, of course, is that if you accept that fertilized eggs don't have human rights you lose your best argument against abortion. You're stuck on the slippery slope of determining when, exactly, human rights should attach to the developing egg, finding that bight line point that the pro-choicers struggle with too.

I submit that it is there that there is room for legislative discernment, not in some absolutist position either way.

BTW, I noticed on the web a discussion of the Septuagint, the most ancient known translation of the Hebrew bible, in wihch a passage in Exodus marks out a big difference between early and late pregancy. In this passage, if "men striving" injure a preganant woman so she "expels her fruit," if it is "unformed" the penalty is a fine. If it is "fully formed," the penalty is death. Thus, even the ancient religious Hebrews did not see the early-stage products of conception as fully human with associated human rights. The fine, after all, was levied as punishment for the assault on the woman, not the the independent claim of the unformed pre-fetus.

There you go again, Rick. How many times have I said this? I am not discussing a right to privacy. I have said that even if there is a right to privacy that can be logically inferred from other, enumerated constitutional rights -- which I think is at least plausible -- how does it in any way relate to abortion?

If you're so interested in the Ninth Amendment, why haven't you read the thing?

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I have two points. First, if you think that creates an unlimited and supreme power of judicial review of any legislative act for any reason, you're really just implying that the Framers were complete morons. They knew how to write language granting power to the government; that's what Articles I, II, and III of the Constitution are. If they wanted to grant such a power to the judiciary, they could have. Furthermore, as a historical matter, it's simply not true. The question of judicial review had not been decided in 1791, and after the election of 1800 became a major part of the acrimonious dispute between the Federalists and the Republicans. The Federalists wanted the kind of absolute, supreme judicial review you support so they could, among other things, maintain their hold on the federal government even though they had been decisively swept out of power in Congress and the presidency. The Republicans wanted a much more limited power of judicial review, which is what they got. It's absurd to suggest the Ninth Amendment is a basis for unfettered judicial power over the elected branches.

Second, as I said, read the damned thing. Do you see a period after "others?" There isn't one. The words are "others retained by the people." The key there is "retained." To retain means "to maintain possession; to keep in possession or use; to hold or keep in." One cannot retain what one does not have. What rights, then, did the people retain? The British constitution was scattered about various statutes, like Magna Carta, the Petition of Right, and the [English] Bill of Rights, and the common law. They were not codified in a single document. Most of the important basic rights made it into the Constitution or the Bill of Rights, but some did not. The Ninth Amendment simply guaranteed that the codification of rights in the Constitution did not mean they were then the only rights the people had and that the remaining, uncodified rights no longer existed. One example where the Ninth Amendment was judicially applied is the principle that the government cannot simply force A to give property to B. As our law has become more and more positive, looking to constitutional text to find rights instead of English common law, the Ninth Amendment has become less and less relevant. On its face, it preserved existing rights. It cannot plausibly be construed to give license to arbitrarily declare things fundamental rights.

Publius:

Now what's your point? That you're worried you need a federal judge to protect your right to consume, ambulate, and lollygag as you please? The federal courts have always held that legislatures have no power to pass laws that have no rational basis. And yes, your basic liberty to order the minutiae of your daily life as you see fit is something that would fall under the Ninth Amendment, as being something so silly that nobody would waste time enumerating it.

Your interpretation of the Ninth Amendment is also not correct. Yes, it was an assurance that the enumeration of rights was not exclusive. It does not follow, however, that consequently everything not specifically prohibited became a fundamental right, not within the power of the legislature to regulate. This would be an odd situation indeed, since the Constitution says very little, if anything at all, about what the people can't do. By your reasoning, every law, at least at the state level, is presumptively unconstitutional. That's just stupid.

Rather, the burden is on the government to show it has the authority to impose restrictions on the individual. Presumably, there must be some compelling state interest, not some arbitrary whim to make people dance to their tune.

Such a view has never been part of our theory of government. You suggest the Constitution requires something approaching mere anarchy. I think you realize the oddity of your statement. You're borrowing the language of the strictest judicial test for the constitutionality of state action: necessary to achieve a compelling government purpose. You know that there are more possibilities than a law being necessary to achieve a compelling government purpose, or if not, being whimsical and arbitrary. That would be what's commonly known as laws rationally related to achieve a legitimate government purpose. That's why we have the whole discussion about what are fundamental rights, or suspect classifications.

Equally mushy, though, is the government's so-called "police power", the consitutional basis of government's right to regulate our conduct as individuals. Where's the constitutional text for the police power? I submit that there is none -- that's why it is an implied power -- but none of us doubt that it is both real and legitimate.

Of course there is one.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Yet we take it for granted that this and a million other activities, large and small, fall within our "rights" to do.

Your problem is that you don't distinguish between "right" and "Constitutionally protected right". You have the right to do anything that the majority of society thinks you should be allowed to do, unless it is forbidden by the Constitution (e.g. you can't own slaves). That doesn't mean you have a *Constitutionally protected* right to do those things.

If your local city passed a ban on skipping on the sidewalks, it would be illegal to skip on the sidewalks -- end of story. Skateboarding, rollerblading, an bicycling on the sidewalk have all been banned in various municipalities, after all -- what makes skipping so special?

On the other hand, if your local city passed a ban on the practice of the Wiccan religion, you would still have the right to practice that religion, because the right to free exercise of religion isn't granted by voters or Congressmen, but by the Constitution itself.

The reason the ninth amendment was put there [...]

Take a look at the actual text of the 9th:

"shall not be construed to deny or disparage others retained by the people."

Retained. As in, "if you have a right, this Constitution doesn't take it away unless we explicitly say so in the text". Not "you have Constitutional protection for every imaginable right in the entire fucking UNIVERSE that we forgot to mention". Not "feel free to add Constitutional protection to whatever rights the Supreme Court feels like, even if the state courts don't recognize it". All it says is that the Constitution itself shouldn't be read as depriving people of their rights.

They didn't have a right to abortion prior to the passage of the Constitution. They didn't have a right to control over their own bodies prior to the passage of the Constitution (see also: laws against drug use, prostitution, various sex acts, and suicide). So they can't have "retained" any such right.

Furthermore, all the amendment says is that the *Constitution* doesn't deprive people of those rights. That doesn't mean states can't deprive their own citizens of those rights. The only rights states are forbidden from removing are the rights that the Constitution explicitly protects. "The Constitution doesn't deny you this right" is not the same thing as "the Constitution says you have this right and nobody can take it from you". There are countless things you have a right to do, but which the Constitution won't protect if the voters turn against it. Such as, for example, skipping down the sidewalk.

Indeed, the asssertion that a fertilized egg is a full fledged human being with all attendant rights to care and respect leads to some absurd results. For instance, it now appears that something like 20% of all fertilized eggs are expelled before they implant. If we deemed each one of them human, we'd be culture-bound to hold funerals for a million tampons per month.

Huh? If a man dies and nobody cares, they simply burn his corpse into oblivion, or nail him shut in a box and drop it into the ground -- in either case, mainly for sanitary reasons. Cultural relics like funerals are invariably dependent on who knew the deceased, and whether they learned in time that he WAS deceased.

If you wish to become the official tampon inspector, be my guest -- as far as I know, the office is yet open and the competition is low. Otherwise, a discharged zygote will probably pass unnoticed; meanwhile, some people who find the closure meaningful have held funerals when a known miscarriage occurred.

Well that's convenient, you dismiss RvW based on the assertion of privacy as a right and then you refuse to "argue" about it.

I have two points. First, if you think that creates an unlimited and supreme power of judicial review of any legislative act for any reason, you're really just implying that the Framers were complete morons.

And I don't so there is no need to discuss this.

It's absurd to suggest the Ninth Amendment is a basis for unfettered judicial power over the elected branches.

But since you decided to set up the straw man… Powers are not individual rights, the anti-federalists were the ones to insisted on the 9th because they feared exactly what you are doing, making the argument that an individual right does not exist simply because it is not enumerated in the constitution. The issue is whether or not the legislator can pass a law that imposes on an individual right. In many cases it can citing tests such as "compelling states interest" (a wholly extra constructional notion BTW).

It's not at all about the power of the Judiciary over the legislator at all as you suggest. It's about the power of the Legislature to enact laws that violate the protections of individual rights granted by the constitution. You are obviously objectively anti-individual rights (that last line was a humorous cheap shot and an obvious straw man)

Some institution must be able to interpret the constitution because even the founding fathers disagreed on what it meant and got into squabbles over it before the ink was dry on ratification.

That being said I agree that there is not a "blank check" to "find" new rights however the "right to privacy" could hardly be looked at as something whipped up out of whole cloth. After all what exactly does the 4th amendment protect if not a general right to keep the government from fishing expeditions. You're acting like the assertion of a right to privacy is something that came from Mars.

One example where the Ninth Amendment was judicially applied is the principle that the government cannot simply force A to give property to B.

Huh? This is specifically mentioned in the constitution, "…nor shall private property be taken for public use, without just compensation" so how is that an application of the 9th amendment jurisprudence exactly? But let's say it was not mentioned in the constitution, how exactly did that jurisprudence come about? Was it the courts unfettered judicial power over the elected branches? It would have to be, some government somewhere was attempting to take property without compensation and the courts stepped in to say they can't. But here the "right" is spelled out in the constitution so it can’t be activism and it's not a good example of 9th amendment jurisprudence.

As for this "retained" argument I would venture a guess that, given the fact that they went out of their way to include the 4th amendment, it could be reasonably suggested that "privacy" is one of those unremunerated rights (subject to compelling state interest tests that would address issues involving crimes).

Basically you want to ignore the plain meaning of the 9th because you feel it is too subjective and I would argue that there is little in the Constitution that isn't. As to your query about how it relates to abortion that is an interesting question, and the short answer is that if you decide to outlaw abortion you can’t enforce it unless you go on periodic fishing expeditions though the "private" medical records of woman who have had abortions (after all how would you know they didn’t simply miscarry?).

To do that you have to argue that a fetus has rights that are protected under the constitution (a fairly extra constitutional interpretation BTW).Then you have to assert that there is a compelling state interest (or sum such), that trumps the right of privacy on the part of a woman over the newly excavated rights of the unborn fetus. Once a fetus has rights then no state could pass any law that violated that right, therefore no state could make abortion legal because it would violate the newly excavated constitutionally rights of an unborn fetus. You would have a difficult task providing evidence that the Founding Fathers thought an unborn fetus would have constitutional protections in a era where slaves were considered chattel. But let's say you did, at this point the argument that the question would go back to the states is moot because now an unborn fetus has constitutional rights that trump the constitutional rights of the woman and cannot be undone by the legislatures of the states.

As for this "retained" argument I would venture a guess that, given the fact that they went out of their way to include the 4th amendment, it could be reasonably suggested that "privacy" is one of those unremunerated rights (subject to compelling state interest tests that would address issues involving crimes).

Let's say that privacy was, in fact, one of the unenumerated rights.

It still isn't protected by the Constitution. Once again, "the Constitution doesn't ban this right" is not the same as "the Constitution protects this right and the states can't restrict it in any way". Most rights aren't protected by the Constitution; they are protected only by regular laws establishing them, or by the absence of laws restricting them. For example, women have the right to work as licensed prostitutes in Nevada, but not in Arizona.

To a certain extent, of course, this argument is moot, because abortion can't be justified on privacy grounds. The right to privacy may protect every cell of your own body, but it does not extend to the bodies of other organisms. A fetus is no more a part of the mother's body than it is the father's; it is simply living in (and off of) the mother's body. Privacy no more protects abortion than it protects murdering houseguests.

Basically you want to ignore the plain meaning of the 9th because you feel it is too subjective

Again, the plain meaning of the 9th amendment is that it was a simple statement of fact that the Constitution wasn't restricting liberties. You're claiming that the 9th extended protection of liberties against encrouchment by state laws, and that is plainly wrong.

To do that you have to argue that a fetus has rights that are protected under the constitution (a fairly extra constitutional interpretation BTW).

Last I checked, the Constitution covers all humans within the United States, citizens or no. So if a fetus is human than it is clearly protected under the Constitution. Since it is a simple fact that fetuses are genetically human, the only point of argument is whether that's good enough to qualify. I think it isn't, and am therefore pro-choice. But I can't prove that, because the issue is purely subjective. So the question is, who gets to decide when a genetically-human organism achieves full human status -- five judges, or the collective opinion of Americans as passed along through their duly elected representatives? The latter makes a great deal more sense.

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